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Absence of Evidence of Physical Injury Precluded 15 Point Assessment for Violence in SORA Proceeding

The First Department determined the SORA court improperly assessed 15 points for violence because there was insufficient evidence of physical injury:

The court erred in assessing 15 points under the risk factor for use of violence, because the People did not meet their burden of establishing, by clear and convincing evidence, that defendant caused physical injury (see Penal Law 10.00[9]) to the victim. Although minor injuries may cause substantial pain, a showing of “more than slight or trivial pain” is required …. The People do not dispute defendant’s assertion that the photographs of the injuries depicted only “faint marks and superficial scratches.” Although evidence of medical treatment is unnecessary to establish physical injury …, here the victim’s bare statement that her knee “hurt” was insufficient to support the inference that she suffered substantial pain, given the absence of evidence that she even used ice or an over-the-counter pain reliever. Furthermore, the injury was not sustained as a result of a deliberate assault or other act supporting an inference that it caused substantial pain …. Therefore, the court should have assessed 10 points for forcible compulsion, but not 15 points. People v Quito, 2013 NY Slip Op 03938, 1st Dept, 6-4-13

 

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Defendant Handcuffed, Post-Arrest Search of Backpack Unlawful

In determining the search of defendant’s backpack was unlawful because there were no exigent circumstances to justify it, the First Department wrote:

The search of defendant’s backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control…. The contents of the backpack, which included a pair of pliers and unused garbage bags, should have been suppressed because even where a container is not in the exclusive control of the police, exigency justifying its search incident to arrest is not established in the absence of “some reasonable basis for the belief that the contents of those containers might pose a danger to the arresting officers or when there is legitimate concern for the preservation of evidence which might reasonably be thought to reside within the containers”….  People v Diaz, 2013 NY Slip Op 03937, 1st Dept, 6-4-13

SUPPRESSION

 

Forum Non Conveniens Doctrine Applied

In affirming the dismissal of the action on forum non conveniens grounds, the First Department described the criteria and relevant facts as follows:

The doctrine of forum non conveniens, as codified under CPLR 327, permits a court to stay or dismiss an action “where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere” …. The doctrine rests on considerations of justice, fairness and convenience … . * * *

The subject matter of this action – insurance coverage for liability relating to the manufacture of products in Massachusetts – has no substantial connection to New York. When the policies were issued, Warren was a Massachusetts corporation and had its principal place of business in that state. Liberty Mutual, the insurer under the policies at issue, is a Massachusetts corporation that has its principal place of business in that state. Both plaintiffs are foreign corporations that maintain their principal places of business in other states… . Century Indem Co v Liberty Mut Ins Co, 2013 NY Slip Op 03953, 1st Dept, 6-4-13

 

Preclusion Proper Remedy for Discarding of Computer Containing Crucial Evidence​

The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence:

Plaintiff’s conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court’s assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff’s bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff’s disposal of the subject computer was, at the very least, grossly negligent ….  Defendants established that plaintiff’s spoliation of critical evidence compromised defendants’ ability to prosecute their counterclaims … . Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Harry Wiess, Inc v Moskowitz, 2013 NY Slip Op 03927, 1st Dept, 5-30-13

 

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No Conversion Action for Real Property; No Conversion Action Where Money Transferred Pursuant to Agreement

In affirming the dismissal of a complaint in which it was alleged the purchase of a building was induced by misrepresentations, the First Department noted there can be no action for conversion of real property, and there can be no action for conversion of money which was transferred pursuant to an agreement:

The motion court properly dismissed plaintiff’s sixth cause of action alleging conversion. As it accurately noted, to the extent plaintiff based that cause of action on an alleged conversion of its 7% fee interest in the premises, the claim must fail because a party may not sustain a claim for conversion of real property …. Similarly, while a party can properly assert a claim for conversion of money …the $2 million cannot be the subject of a conversion claim here. Even accepting the truth of the allegations in the complaint, plaintiff does not allege that defendants wrongfully exercised dominion over those funds in derogation of plaintiff’s ownership … [conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights][internal citations omitted]). On the contrary, by alleging that it agreed to, and did, transfer the funds in return for the 7% interest in the property, plaintiff tacitly concedes that possession of the money was authorized. B & C Realty, co v 159 Emmut Props LLC, 3013 NY Slip Op 03913, 1st Dept, 5-30-13

 

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SORA Amendments Did Not Render Statute Punitive—Ex Post Facto Clause Not Applicable​

In a full-fledged opinion by Justice Andrias, the First Department determined the amendments to the Sex Offender Registration Act (SORA) did not render the statute punitive and thereby violate the Ex Post Facto Clause or violate the Double Jeopardy prohibition with respect to the defendant:

It may be true that subjecting sex offenders to lifetime registration and notification requirements, with their attendant obligations and restrictions, increases the difficulties and embarrassment a sex offender may endure, even where he has led a law-abiding life since his conviction. However, in assessing the constitutionality of a statute, this Court does not review the merits or wisdom of the Legislature’s decisions on matters of public policy …, and the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional. Although “one can argue that such laws are too extreme or represent an over-reaction to the fear of sexual abuse of children, . . . they do not violate the ex post facto clause . . . . People v Parilla, 2013 NY Slip Op 03931, 1st Dept, 5-30-13

 

Failure to Get Court’s Permission to Represent to a Grand Jury Required Dismissal of Indictment​

The First Department determined that the prosecutor’s failure to get court permission to represent a case to a grand jury need not be preserved by objection and required dismissal of the indictment:

The failure to obtain court authorization to re-present the charges to a second grand jury implicates the power to prosecute…; thus, defendant was not required to alert the court to the authorization requirement of CPL 190.75(3), or otherwise object, in order to preserve the issue for appellate review. Where, as here, the prosecutor presented charges and the grand jury failed to vote to either dismiss them or indict the defendant, a situation arose “in which the court, and not the prosecutor, should have decided whether re-presentation to a second grand jury was appropriate”…. In the absence of court authorization, dismissal of the indictment is required …. People v Miller, 2013 NY Slip Op 03928, 1st Dept, 5-30-13

 

Contract Provision Protected Contractee from Damages for Delay Caused by Regulators​

In a full-fledged opinion by Justice Mazzarelli, the First Department determined, among many other contract-issues, that delays allegedly caused by regulators (re: asbestos-removal) were included in the contract provision which insulated the contractee from delay-related damages:

“A clause which exculpates a contractee from liability to a contractor [Bovis] for damages resulting from delays in the performance of the latter’s work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally”…. However, such a clause may be disregarded under certain recognized exceptions, including one for delays that are “uncontemplated” …. Delays are not considered uncontemplated when they “are reasonably foreseeable, arise from the contractor’s work during performance, or . . . are mentioned in the contract” …. Further, a party seeking to invoke any of the exceptions to the general rule that no damages for delay clauses are enforceable bears a heavy burden … .

Here, Bovis failed to carry its heavy burden. The contract specifically anticipated the possibility that the involvement of regulators would delay the process. Again, Bovis expressly acknowledged that it assumed the “risk of all regulatory and other Governmental Authority delays.” Certainly this lifted the no damages for delay clause out of the exception for uncontemplated delays. There is no basis for Bovis to argue that by alleging that the extent of the regulatory delays was extreme and unprecedented it stated a claim for delay damages. As this Court has stated in finding a no damages for delay clause enforceable, “[W]hile the conditions themselves may not have been anticipated, the possibility, however unlikely, of their arising was contemplated and addressed by the parties in their agreement” … .  Bovis Lend Lease (LMB), Inc v Lower Manhattan Dev Corp, 2013 NY Slip Op 03804, 1st Dept, 5-28-13

CONSTRUCTION CONTRACT

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Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial​

The First Department determined that a retainer agreement for work “up to” a trial in a divorce action precluded the law firm from recovering any fees for the trial.  To cover those fees a second retainer agreement was required:

The plain language of the retainer states that the law office’s representation of Blisko includes work leading “up to” a trial, “but not including an actual trial.” Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer …. Law Off of Sheldon Eisenberger v Blisko, 2013 NY Slip Op 03802, 1st Dept,. 5-28-13

 

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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

 The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications “at issue.” The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

 

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