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Irrelevant Information in Presentence Report Should Not Have Been Allowed In “Dangerous Sex Offender” Proceeding

In affirming a jury finding of mental abnormality and a finding that respondent was a dangerous sex offender requiring confinement, the First Department noted that the state’s expert should not have been allowed to testify about respondent’s admission in a presentence report that he was in the vicinity of a rape with which he was never charged:

The court erred in permitting the State expert to testify regarding respondent’s admission, in a presentence report, that he was in the vicinity when a rape, with which he was never charged, was committed. While this statement was sufficiently reliable to show that respondent was in the vicinity of the rape, it was not reliable for the purpose of showing that he committed the rape…. Nevertheless, this error was harmless given the expert’s reliance on two brutal sexual assaults to which respondent pleaded guilty and a third that he admitted committing, and given the court’s appropriate limiting instructions, which served to dispel any prejudice …. Matter of State of New York v Charada T, 2013 NY Slip Op 04548, 1st Dept, 6-18-13

 

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Significant Limitation Need Not Be Permanent to Constitute Serious Injury; Recent Physical Examination Is Not Prerequisite for Overcoming Summary Judgment

In reversing summary judgment granted to the defendant, the First Department noted that a significant limitation of use of a body function need not be permanent to constitute a serious injury within the meaning of Insurance Law 5102, and the First Department further explained that its precedent in this area should not be read to require a recent physical examination to overcome summary judgment:

…”[A] significant limitation [of use of a body function or system] need not be permanent in order to constitute a serious injury”…. Indeed, a ” permanent consequential limitation’ requires a greater degree of proof than a significant limitation’, as only the former requires proof of permanence”…. “Insurance Law § 5102(d) does not expressly set forth any temporal requirement,” although assessment of the limitation’s significance does require consideration of its duration in addition to its extent and degree…. Therefore, the lack of a recent examination, while sometimes relevant, is not dispositive by itself in determining whether a plaintiff has raised a triable issue of fact in opposing a defendant’s prima facie evidence under the “significant limitation” category.  Our decision in Townes v Harlem Group, Inc. (82 AD3d 583, 583-584 [1st Dept 2011]), should not be read to require a plaintiff to submit a recent examination as a necessary prerequisite to overcoming judgment as a matter of law in every instance of a claim under the “significant limitation” category. To the extent that the Townes Court did require a recent examination, it was due to the specific facts present in that case. Furthermore, the precedents that decision relied upon in requiring a recent examination do not specifically address the degree of proof necessary for a “significant limitation” claim as opposed to a “permanent consequential limitation” claim, instead conflating these two categories of serious injury…. Vasquez v Almanzar, 2013 NY Slip Op 04561, 1st Dept, 6-18-13

 

Trial Court’s Questioning Jury Whether It Had Reached a Verdict on Any Counts and Its Acceptance of a Partial Verdict Okay

The First Department determined the trial court, after several days of deliberation, properly questioned the jury whether it had reached a verdict on any of the counts and properly accepted a partial verdict:

The court, which was aware of the travel plans and upcoming religious observance of some of the jurors, properly exercised its discretion when it inquired whether the jury, which had been deliberating for several days, had agreed upon a verdict as to any of the counts submitted, and then accepted a partial verdict…. In accordance with CPL 310.70(1)(b), the court properly instructed the jury to resume deliberations on the remaining counts. The court’s actions did not coerce a verdict as to any counts…, and defendant has not shown how he was prejudiced by any of these actions.  People v Campbell, 2013 NY Slip Op 04418, 1st Dept, 6-13-13

 

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Criteria for Fraudulent Inducement and Attachment

In a full-fledged opinion by Justice Feinman, the First Department outlined the criteria for fraudulent inducement where the parties are “sophisticated entities,” as well as the strict criteria for attachment:

The elements of fraud are a misrepresentation or a material omission of fact which was known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or omission, and injury …. In this case, the buyers have not sufficiently alleged justifiable reliance. “[R]eliance must be found to be justifiable under all the circumstances before a complaint can be found to state a cause of action in fraud”…. What constitutes reasonable reliance is “always nettlesome” because it is so fact-intensive…. Sophisticated investors must show they used due diligence and took affirmative steps to protect themselves from misrepresentations by employing what means of verification were available at the time … . * * *

We conclude that, on the extant record which consists of competing affidavits, the grant of an attachment and its confirmation was an abuse of discretion. “[T]he mere fact that defendant is a non-domiciliary residing without the State of New York is not sufficient ground for granting an attachment”…. The sellers have shown no evidence that the buyers lack sufficient assets, or that they will choose to hide or otherwise dispose of their assets. We note that no hearing was held at which the credibility of the buyers’ averments regarding their financial status and resources could be evaluated. At most, the sellers’ affidavits establish that there is potentially a significant amount of bureaucracy involved in obtaining the assets as converted funds. This is not, in itself, sufficient to order an attachment. The orders of the motion court granting and confirming the orders of attachment, and granting discovery to aid in attachment, as well as the order that the buyers transfer assets into New York State, should therefore be reversed.  VisionChina Media Inc v Shareholder Representative Servs, LLC, 2013 NY Slip Op 04298, 1st Dept, 6-11-13

 

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Supreme Court’s Grant of Defendants’ Motion to Set Aside Verdict Reversed

The First Department, over a substantial dissent, reversed Supreme Court’s grant of defendants’ motion to set aside the verdict in a medical malpractice action:

“The question of whether a verdict is against the weight of the evidence is discretion-laden, and the critical inquiry is whether the verdict rested on a fair interpretation of the evidence”…. On this record, we conclude that the Supreme Court erred in setting aside the verdict as against the weight of the evidence, because it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence…. The jury was entitled to resolve in plaintiff’s favor the conflict between the decedent’s and Dr. Conte’s testimony as to the nature and timing of her complaints and whether he later made referrals for CT scans that she declined.  Rose v Conte, 2013 NY Slip Op 04297, 1st Dept, 6-11-13

 

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Plaintiffs Should Have Been Allowed to File Late Notice of Claim

The First Department determined plaintiff, who was eleven at the time of the accident, should have been allowed to file an amended notice of claim. The original notice described the wrong address.  At the 50-h hearing the plaintiff identified the correct location after seeing photographs of the incorrect location.  The defendant did not meet its burden of demonstrating prejudice.  Gonzalez v NYC Hous Auth, 2013 NY Slip Op 04287, 1st Dept, 6-11-13

 

Forum Non Conveniens Doctrine Applied

In affirming the dismissal of a complaint on forum non conveniens grounds [after noting the first inquiry must be whether the court has jurisdiction over the parties], the First Department wrote:

“The applicability of foreign law is an important consideration in determining a forum non conveniens motion and weighs in favor of dismissal”… .. The question of whether defendants’ corporate veils should be pierced will be determined by the laws of each defendant’s state of incorporation… . That means that a New York court will have to apply the laws of Samoa, Hong Kong, and Canada.  The witnesses and documents required to show that defendants are alter egos will likely be located in Samoa, Hong Kong, and Canada. This also weighs in favor of dismissal… .  Other than the fact that plaintiff is trying to enforce a judgment of the Southern District of New York (which merely recognized a London judgment against Shipping), this case has no tie to New York… .  Flame SA v Worldlink Intl (Holding) Ltd, 2013 NY Slip Op 04107, 1st Dept, 6-6-13

 

Adjournment Which Would Not Affect Trial Date Should Have Been Granted

The First Department determined Supreme Court should not have denied a request for a one-day adjournment to conduct an independent medical examination (IME):

The court improvidently exercised its discretion by denying defendants a one-day adjournment to conduct the already scheduled IME, as there is no evidence that the failure to conduct it previously was willful, and no evidence that plaintiff would have been prejudiced by the delay …. Moreover, the court could have allowed the IME without vacating the note of issue…, thereby causing no delay in the trial. …  Pickering v Union 15 Rest Corp, 2013 NY Slip Op 04122, 1st Dept, 6-6-13

 

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“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer

In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):

The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .

The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….

A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .

To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13

 

½ Inch Differential Was Trivial and Could Not Be Basis of Liability

The First Department affirmed the dismissal of a slip and fall complaint finding the one-half-inch differential between the level of the sidewalk and the frame of the cellar door was trivial and could not serve as the basis of liability.  Boynton v Haru Sake Bar, 2013 NY Slip Op 04113, 1st Dept, 6-6-13

 

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