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Hearsay Evidence Can Be Considered in Opposition to Summary Judgment Motion As Long As It Is Not the Only Evidence​

In affirming the denial of defendant’s summary judgment motion where plaintiffs’ complaint alleged defendant coerced decedent into executing estate planning documents, the First Department noted that hearsay evidence may be considered as long as it is not the only evidence offered:

While defendant correctly asserts that plaintiffs submitted certain hearsay evidence in opposition to the summary judgment motion, including certain physician and attorney notes, such hearsay evidence may be considered when submitted in opposition to a summary judgment motion, so long as it is not the only proof submitted …. Here, nonhearsay evidence, including affidavits from the decedent’s friends as well as the decedent’s first daughter, described the contentious nature of the marriage and the decedent’s declining mental health. Moreover, the decedent, who was 83 years old and undisputedly suffered from some degree of cognitive impairment when he signed the documents, initiated this lawsuit during his lifetime and attested, by his verified complaint, to his declining health and defendant’s abusive and coercive conduct.  Plaintiffs further rely on a nonhearsay affidavit from a forensic document examiner that concluded that the decedent’s signature was forged on the retainer letter, possibly by defendant, as additional evidence that defendant coerced the decedent into retaining counsel to execute these documents and did not want the decedent to have separate counsel in the event of any conflict. All of this raises triable issues of fact whether defendant wielded sufficient influence over the decedent to overcome his free will …. Bishop v Maurer, 2013 NY Slip Op 03771, 1st Dept, 5-28-13

 

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Doctrine of Continuous Representation/Retainer Agreement in Estate Proceeding “Unconscionable”​

In a case involving “gifts” and a 40% contingency fee for three defendant attorneys’ work on an estate worth several tens of millions, the First Department applied the “doctrine of continuous representation” to toll the statute of limitations and found the fee arrangement(s) “unconscionable:”

The claims relating to the gifts the widow made to the three individual defendants are not time-barred. Rather, they were tolled under the doctrine of continuous representation …. Contrary to the individual defendants’ contention, the doctrine applies where, as here, the claims involve self-dealing at the expense of a client in connection with a particular subject matter….  * * *

The revised retainer agreement is both procedurally and substantively unconscionable…. The evidence shows that the widow believed that under the contingency arrangement, she would receive the “lion’s share” of any recovery. In fact, as it operated, the law firm obtained over 50% of the widow’s share of proceeds. Thus, the law firm failed to show that the widow fully knew and understood the terms of the retainer agreement–an agreement she entered into in an effort to reduce her legal fees … .

In considering the substantive unconscionability of the revised retainer agreement, the Referee correctly considered such factors as the proportionality of the fee to the value of the professional services rendered… , and the risks and rewards to the attorney upon entering into the contingency agreement … .

The amount the law firm seeks ($44 million) is also disproportionate to the value of the services rendered (approximately $1.7 million) … .Matter of Lawrence, 2013 NY Slip Op 03759, 1st Dept, 5-22-13

 

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Expert Evidence About a “Date Rape” Drug Not Implicated in the Trial Did Not Require Reversal; Jury Deemed to Have Considered Only Evidence Supported by the Record​

In a full-fledged opinion by Justice Saxe, the First Department upheld the conviction for rape and for facilitating a sex offense with a controlled substance.  The controlled substance referenced in the indictment and the subject of proof at trial was ecstasy.  However, expert evidence of the effects of another drug, GBH, was allowed in at trial. The First Department determined the unsupported testimony about GBH did not require reversal because it could be assumed the jury relied upon the allegations supported by the evidence:

…[T]he reference in the experts’ testimony to GHB and its symptoms, and the People’s reference to that evidence in support of their summation, did not impermissibly present the jury with a new, legally inadequate theory…. Rather, at worst, the suggestion that the complainant may have also been drugged with GHB was merely a “factually unsupported theory” …. “[W]here jurors are given a choice between a factually supported and factually unsupported theory, it is assumed they have chosen the one with factual support” …. Here, we can assume that in determining whether the complainant was “rendered temporarily incapable of appraising or controlling [her] conduct owing to the influence of a narcotic or intoxicating substance administered to [her] without [her] consent,” the jurors relied on those of the People’s assertions that were supported by the evidence. People v Blackwood, 2013 NY Slip Op 03764, 2nd Dept, 5-23-13

 

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Defense Counsel Deemed Ineffective/Failed to Examine Evidence

The First Department determined defense counsel was ineffective (requiring a new trial) because he emphasized the difference between the Ziploc bags (containing drugs) the defendant was alleged to have sold to an undercover officer and the bags which were in defendant’s possession upon his arrest without ever comparing them.  When the jury asked to see the bags which were in defendant’s possession, defense counsel was forced to acknowledge that they matched those purchased by the undercover officer:

In focusing on the Ziploc bags, counsel eviscerated his entire strategy. No longer could the jury believe that no physical evidence tied defendant to the charges; to the contrary, counsel pointed them in the direction of strong physical evidence. Further, the jury could not be expected to acquit defendant on the theory that the People’s case lacked credibility when his own counsel demonstrated a lack of believability on a critical issue at trial. In addition, defendant’s own credibility was directly undermined by counsel’s failure to conduct due diligence, since he testified about a discrepancy between the drugs purchased by the undercover and those recovered from him by the police. There was no sound strategy underlying counsel’s decision to focus the jury on the evidence bags. By his own admission, it was a mistake, and he would not have highlighted the Ziploc bags had he known their actual contents. This self-sabotage of counsel’s defense strategy, albeit inadvertent, was inherently unreasonable and prejudiced defendant’s right to a fair trial under New York law… .  People v Barnes, 2013 NY Slip Op 03757, 1st Dept, 5-23-13

 

Fall from Unfolded Step Ladder Stated Claim​

In determining plaintiff’s use of a step ladder that was not unfolded did not warrant dismissal of the Labor Law 240(1) cause of action for a fall from the ladder, the First Department wrote:

Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim as against defendants …by his testimony that: (1) the ladder was the only one available; (2) the ladder could not be properly opened into an A-frame stance due to excess debris in his narrowly confined work space; (3) he asked his foreman for another ladder, to no avail; (4) the ladder was unusual in that the step treads contained spikes which unexpectedly caught hold of his shoe as he was descending the improperly leaning ladder; (5) he was caused to fall backwards, from a height of approximately six feet; and (6) his right shoulder was injured when it struck the wooden work-zone barrier as he fell.  Keenan v Simon Prop Group, Inc, 2013 NY Slip Op 03622, 1st Dept, 5-22-13

 

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New York City Administrative Code Imposing a $2000 Fine for Removal Recyclable Material from Curb Violated Excessive-Fines Clauses​

In a full-fledged opinion by Justice Richter, the First Department determined the New York City Administrative Code provision which imposed a $2000 fine for the removal of recyclable material from the curb violated the Eighth Amendment as applied.  The code provision was designed to prevent large scale removal of recyclable material which deprived the City of recycling income. The petitioner was an artist who used recyclable material in his work.  He picked up a television antenna which had been put out on the curb.  He was pulled over by the NYC sanitation police, given a summons mandating a $2000 fine, and his vehicle was seized.  The First Department wrote:

It is undisputed that petitioner violated the relevant Administrative Code provision—he removed and transported a recyclable object using a motor vehicle. Nevertheless, under the specific circumstances here, we conclude that the mandatory $2,000 penalty amounts to an unconstitutionally excessive fine. The Eighth Amendment of the United States Constitution forbids the imposition of “excessive fines.” The New York State Constitution contains the same prohibition (art I, § 5). The Excessive Fines Clause ” limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense””… . A fine is unconstitutionally excessive if it “notably exceeds in amount that which is reasonable, usual, proper or just” …. Thus, the Excessive Fines Clause is violated where the fine is “grossly disproportional to the gravity of [the] offense”… . Matter of Prince v City of New York, 2013 NY Slip Op 03623, 1st Dept, 5-21-1

 

No Proof of Service of Notice of Entry of Default Judgment; One Year Deadline Never Triggered​

The First Department noted that the one-year deadline for a motion to vacate a default judgment (CPLR 5015) was never triggered because the record included no proof that the notice of entry of the default judgment was served.  Gottlieb v Northriver Trading Co, LLC, 2013 NY Slip Op 03618, 1st Dept, 5-21-13

 

Time of the Essence Adequately Stated​

In holding that an attorney’s letter sufficiently stated “time of the essence,” the First Department wrote:

“A party need not state specifically that time is of the essence, as long as the notice specifies a time on which to close and warns that failure to close on that date will result in default”… . [The attorney’s] February 11, 2009 letter warned, “[I]n the event you do not close, I shall release the escrow funds to [the seller].” Such language informs a buyer that he risks default by not appearing at the closing… . Accordingly, because this was a time-of-the-essence closing, plaintiffs defaulted by failing to appear, and defendant … was entitled to keep the down payment … .  Westreich v Bosler, 2013 NY Slip Op 03604, 1st  Dept, 5-21-13

 

New York City’s Decision Not to Apply Increased Take Home Pay Benefit to Police Officers and Firefighters Struck Down

In a full-fledged opinion by Justice Acosta, the First Department determined that the “City of New York’s decision to not apply an increased-take-home-pay (ITHP) benefit to police officers and firefighters placed into Tier III of the retirement system after July 1, 2009, and to continue deducting 3% of their wages towards their retirement benefits, violates Retirement and Social Security Law (RSSL) [section] 440(b)” and supports a cause of action for “common-law conversion of the deducted wages.”  Lynch v City of New York, 2013 Slip Op 03581, 1st Dept, 5-16-13

 

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Teachers’ and School Administrators’ Grievances Re Staff Cuts Stemming from School Closings Deemed Arbitrable​

The First Department determined the teachers’ and school administrators’ unions’ grievances concerning staff cuts inherent in the Department of Education’s (DOE’s) plan to close 24 underperforming schools were arbitrable, rejecting the DOE’s argument.  The arbitrator ruled the plan violated the collective bargaining agreement’s (CBA’s) requirements that staff cuts be done on the basis of seniority:

While broadly referencing educational laws and regulations, the DOE fails to identify any law that “prohibit[s], in an absolute sense, [the] particular matters [to be] decided”… [“[i]t is only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated”]). The underlying grievance in no way impinges on the authority of the SED (State Education Department] to approve a plan for the closure or the reopening of the 24 underperforming schools as new schools under the Education law (Education Law § 2590-h). Nor can the DOE rely on its own inclusion of proposed staffing changes in its plan to close schools to support its argument that staffing issues are now a state policy, law or regulation having the effect of law, which removes them from the dispute resolution regimen provided in the CBAs. Matter of Board of Educ of the City Sch Dist of the City of NY v Mulgrew, 2013 NY Slip Op 03580, 1st Dept, 5-16-13

 

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