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THE TRIAL JUDGE PROPERLY TERMINATED DEFENDANT’S SELF-REPRESENTATION DURING THE TRIAL BASED ON DEFENDANT’S BEHAVIOR; THE TRIAL JUDGE PROPERLY DECLINED TO EXCUSE A JUROR WHO, DURING DELIBERATIONS, SAID HE DID NOT WANT TO CONTINUE; DEFENDANT WAS NOT EXCLUDED FROM A MATIERAL STAGE OF THE PROCEEDING WHEN THE TRIAL JUDGE DISCUSSED HIS MENTAL CONDITION WITH COUNSEL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined defendant, who was representing himself at the time, was not deprived of his right to be present at a material stage of the proceeding when the judge, outside defendant’s presence, discussed whether defendant, who apparently was in an agitated state, should be examined by a psychiatrist. Ultimately no examination was ordered. The First Department held the trial judge properly terminated defendant’s self-representation based on his behavior during the trial. In addition, the First Department concluded that a juror who apparently stated he did not wish to continue participating in the deliberations, was not grossly unqualified:

… [T]he record supports a determination that defendant’s conduct prevented the fair and orderly exposition of the issues and was disruptive to the proceedings … . During the examination of the People’s witnesses, defendant was repeatedly told by the court to “calm down,” to not get agitated, to not argue and be combative with the witnesses, and to not argue with the court regarding its rulings. The record also reflects instances where the court explained its rulings to defendant, defendant stated he understood and would then immediately engage in the same conduct. Moreover, during his testimony, the court repeatedly admonished defendant to stop making arguments to the jury. When asked twice by the court to sit down, he refused to do so. Defendant also repeatedly ignored the direction of the court officer to sit down. Instead, defendant remained standing, continued his argument and questioned the court’s ruling. Defendant also made reference to his over one-year period of pretrial detention as well as that he had a teenage son. People v Williams, 2022 NY Slip Op 04135, First Dept 6-28-22

Practice Point: Here defendant’s agitated behavior during the trial was a proper ground for terminating his self-representation. The judge’s discussion with counsel, outside defendant’s presence, of defendant’s mental health was not a material stage of the proceedings. The judge properly refused to exclude a juror who, during deliberations, said he did not want to continue.

 

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THE PHOTO ARRAY WAS UNDULY SUGGESTIVE; THE VICTIM WAS FIXATED ON THE UNIQUE WHITE AND BLACK PATTERN ON THE SHIRT WORN BY THE ROBBER; IN THE PHOTO ARRAY A SHIRT WITH A BLACK AND WHITE DESIGN WAS VISIBLE IN THE DEFENDANT’S PHOTO, BUT THE FILLERS WERE ALL WEARING SOLID COLOR SHIRTS (SECOND DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the photo array from which the victim identified defendant was unduly suggestive:

The hearing court should have granted defendant’s motion to suppress the victim’s identification of defendant in a photo array. The photo array was unduly suggestive because defendant was the only person shown wearing “distinctive clothing . . .which fit the description” of the suspect … . Moreover, the distinctive clothing was an outstanding feature of the identifying witness’s description of the robber …  The victim told the police that he “fixated” on the “unusual shirt” the r0bber was wearing during the incident, a white shirt with a distinctive black design. In the photo array, the visible part of defendant’s shirt closely matched the robber’s shirt as described by the victim. The fillers, on the other hand, all wore shirts that, to the extent visible in the photos, were solid-colored shirts without any markings or designs. People v Sulayman, 2022 NY Slip Op 04132, First Dept 6-28-22

Practice Point: Here the victim told the police the robber wore an “unusual shirt” with a black and white pattern. In the photo array from which the victim identified the defendant, the defendant was the only one with a black-and-white patterned shirt. All the fillers had solid color shirts. The array was deemed unduly suggestive and a new trial was ordered.

 

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FAMILY COURT SHOULD HAVE MADE THE FINDING THAT PETITIONER’S REUNIFICATION WITH HER FATHER IN THE IVORY COAST WAS NOT VIABLE TO ENABLE HER TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) AND REMAIN IN THE US (SECOND DEPT).

The First Department, reversing (modifying) Family Court, determined Family Court should have found reunification with petitioner’s father in the Ivory Coast was not viable. Petitioner, 16 years old, sought findings from Family Court which would allow her to apply for special immigrant juvenile status (SIJS) and remain in the United States:

Family Court erred in not making any findings of fact as to reunification with petitioner’s father. Exercising our power to review the record and to make our own factual determinations … , we find that the record supports a finding that reunification of petitioner with her father, respondent Lassina D., is not viable due to neglect within the meaning of Family Court Act § 1012 (f)(i) (A)—(B). Petitioner’s testimony shows that the father did not meet the minimal degree of care since he did not provide for her medical and emotional needs while she was in the Ivory Coast, and has not contributed to her financial support or maintained regular contact with her since she has been in the United States …  Her uncontroverted testimony also supports a finding of neglect based on the father’s excessive use of corporal punishment … .Matter of Sara D. v Lassina D., 2022 NY Slip Op 04119, First Dept 6-28-22

Practice Point: Family Court can be petitioned to make findings which will allow a juvenile to apply for special immigrant juvenile status in order to avoid deportation to the juvenile’s home country. Here the court was asked to make findings that reunification with the petitioner’s parents is not viable. The First Department found that father had neglected petitioner and she therefore could not be returned to his care.

 

HERE THE DEFENDANTS RAISED PLAINTIFF’S SIGNING A RELEASE AS AN AFFIRMATIVE DEFENSE; THE COMPLAINT ALONG WITH PLAINTIFF’S AFFIRMATION ADEQUATELY ALLLEGED THE RELEASE WAS THE PRODUCT OF OVERREACHING OR UNFAIR CIRCUMSTANCES AND THEREFORE WAS NOT A BAR TO CERTAIN CAUSES OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff adequately alleged a release (raised by defendants as an affirmative defense) was the product of overreaching and therefore did not bar certain causes of action:

… [T]he amended complaint, along with the affirmation plaintiff submitted in opposition to defendants’ motion, sufficiently alleges that the release was the result of overreaching or unfair circumstances. A court must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Under the alleged facts, the affirmative defense of the release does not entirely bar plaintiff’s action at this stage of the litigation. “[I]t is inequitable to allow a release to bar a claim where. . .it is alleged. . .that it was the result of overreaching or unfair circumstances” … . Chadha v Wahedna, 2022 NY Slip Op 04089, First Dept 6-23-22

Practice Point: At least at the motion-to-dismiss stage, adequate allegations that a release was the product of overreaching or unfair circumstances will preclude dismissal of causes action which would have been barred by a valid release.

 

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PLAINTIFFS RAISED QUESTIONS OF FACT (1) WHETHER THE POLICE ACTED IN RECKLESS DISREGARD OF THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE AND IN FAILING TO NOTIFY THE DISPATCHER OF THE CHASE, AND (2) WHETHER THE CHASE WAS A PROXIMATE OR CONCURRENT CAUSE OF PLAINTFFS’ ACCIDENT (THERE WAS NO CONTACT WITH EITHER VEHICLE INVOLVED IN THE CHASE) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined plaintiffs raised questions of fact about whether the police acted in reckless disregard of the safety of others during a high-speed chase, and whether the chase of the BMW driven by Llewellyn was a proximate or concurrent cause of the accident (neither vehicle involved in the chase struck plaintiffs’ vehicle):

… [T]he motion court properly held that the reckless disregard standard applied in evaluating the City defendants’ conduct in pursuing Llewellyn (see Vehicle and Traffic Law §§ 1104[b], 1104[e]). However, the motion court erred in determining that “there is no evidence that the NYPD officers acted recklessly as a matter of law, and that the pursuit was not the proximate cause or a concurrent cause of this incident” … . …

Plaintiffs … submitted evidence that the City defendants initiated a high-speed chase of Llewellyn’s BMW at close proximity after observing it run a single red light, and continued the high-speed chase, which included crossing over a double yellow line and running two red lights, in a known congested and heavily populated residential area which at the time of the pursuit had moderate to heavy traffic and numerous pedestrians…. . …

Plaintiffs also raised an issue of fact concerning whether the NYPD officers acted recklessly in failing to notify the radio dispatcher at the start of the pursuit and inform headquarters with relevant information, including the nature of the offense. Handelsman v Llewellyn, 2022 NY Slip Op 04093, First Dept 6-23-22

Practice Point: Here there were questions of fact whether the police acted in reckless disregard of the safety of others during a high-speed chase such that the city would be liable for plaintiffs’ accident, and whether the high-speed chase was a proximate or concurrent cause of plaintiffs’ accident (there was no contact with either vehicle involved in the chase). There were questions of fact whether the police drove “in reckless disregard of the safety of others” and whether their failure to notify the dispatcher of the chase was also reckless.

 

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PLAINTIFF’S ATTORNEY WAS NOT AWARE OF COVID-RELATED PROCEDURAL CHANGES FOR CONDUCTING COMPLIANCE CONFERENCES; PLAINTIFF’S MOTION TO VACATE DISMISSAL OF THE ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the COVID-related law office failure was an adequate excuse and plaintiff’s motion to vacate the dismissal of the action should have been granted:

Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the dismissal, as plaintiffs showed both a reasonable excuse for their default and a meritorious cause of action (see CPLR 2005 …). Under the circumstances, law office failure constitutes a reasonable excuse for the default, since plaintiffs’ counsel was unaware that procedures for conducting compliance conferences had changed during the COVID-19 pandemic and, as a result, inadvertently failed to submit stipulations before a scheduled conference … .. Furthermore, plaintiffs demonstrated a meritorious cause of action by submitting the complaint, a bill of particulars, and the injured plaintiff’s deposition testimony … . Defendants also were not prejudiced by plaintiffs’ failure to appear, and indeed, did not oppose the motion to vacate … . Willner v S Norsel Realties LLC, 2022 NY Slip Op 04111, First Dept 6-23-22

Practice Point: Plaintiff’s attorney was not aware of procedural changes related to COVID and the action was dismissed because counsel did not submit stipulations before the scheduled compliance conference. This “law office failure” was a “reasonable excuse.” Plaintiff’s motion to vacate the dismissal of the action should have been granted.

 

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IN NEW YORK THERE ARE NO CAUSES OF ACTION FOR “PRECONCEPTION NEGLIGENCE” OR “WRONGFUL LIFE;” HERE MOTHER ALLEGED THE DRUG SHE HAD BEEN TAKING FOR EPILEPSY BEFORE SHE LEARNED SHE WAS PREGNANT CAUSED THE BABY TO BE BORN WITH SPINA BIFIDA (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiffs’ actions for “preconception negligence” and “wrongful life” should have been dismissed. Plaintiff mother had been treated for epilepsy for years with a drug (VPA). She became pregnant while taking the drug and stopped taking it as soon as she learned she was pregnant. The baby was born with spina bifida:

Defendants treated the infant plaintiff’s mother for epilepsy. To control her seizures, they prescribed valproic acid (VPA), which the mother had been taking for years while under the care of other physicians. Unbeknownst to all, while she was on VPA, the mother conceived the infant plaintiff. Although the VPA was discontinued when the mother learned that she was pregnant, the infant was born with spina bifida, for which she seeks to hold defendants responsible.

It is well established that an infant has no cause of action for preconception negligence … . The infant’s claims that defendants failed to ensure that her mother was on birth control and monitored regularly for pregnancy while on VPA sound in “wrongful life,” for which there is also no cause of action … . Z.L. v Mount Sinai Hosp., 2022 NY Slip Op 04112, First Dept 6-23-22

Practice Point: New York does not recognize actions for “preconception negligence” or “wrongful life.” Here mother alleged the epilepsy drug she was taking until she learned she was pregnant caused her baby to be born with spina bifida. Both causes of action should have been dismissed.

 

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A LEASE BETWEEN PLAINTIFF CORPORATION AND DEFENDANTS (ONE OF WHOM WAS A MEMBER OF PLAINTIFF’S BOARD) WAS NOT VOTED ON BY A MAJORITY OF DISINTERESTED DIRECTORS AND WAS THEREFORE VOIDABLE UNDER BUSINESS CORPORATION LAW 713(B); DEFENDANTS BREACHED THEIR FIDUCIARAY DUTY TO THE CORPORATION BY SUBLETTING THE LEASED PREMISES FOR A MUCH HIGHER RENT WITHOUT PLAINTIFF’S KNOWLEDGE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff cooperative apartment corporation (HDFC) demonstrated defendants (one of whom was a member of plaintiff’s board) had entered a lease with plaintiff which was not voted upon by a majority of disinterested directors and was therefore voidable under Business Corporation Law 713(b). In addition plaintiff demonstrated defendants had breached their fiduciary duty to the corporation:

Plaintiff, a low-income cooperative apartment corporation (HDFC), established prima facie that the lease between plaintiff and defendants Thomas Green and A Cup of Harlem was not voted on by a majority of disinterested directors and is therefore voidable under Business Corporation Law § 713(b). A Cup of Harlem is a partnership between Thomas Green and Siwana Green, who are married. Siwana Green is a shareholder in the HDFC and a former officer and member of plaintiff’s board of directors. By lease dated April 1, 2004, while Siwana Green was one of three members of the board, plaintiff leased one of the two commercial spaces in the building to Thomas Green and A Cup of Harlem for a 99-year term, with a monthly rent of $700 for the entirety of the term and an option to extend the lease for a 10-year term at a rate of $800 per month. In support of its motion, plaintiff submitted a former board member’s affidavit that he was elected to a one-year term in February 2004, that he only learned of the lease in 2018, when Siwana Green was removed from the board, and that he never would have approved a lease with such “outlandish” terms. …

The record demonstrates that Siwana Green breached her fiduciary duty to plaintiff by diverting a corporate opportunity without plaintiff’s knowledge or consent and admittedly receiving more than $200,000 profit from the sublessee to whom, in March 11, 2009, Thomas Green sublet the leased premises at a monthly rent of $2,500 for a ten-year term, which was then renewed for a monthly rent of $2,800. 67-69 St. Nicholas Ave. Hous. Dev. Fund Corp. v Green, 2022 NY Slip Op 04087, First Dept 6-23-22

Practice Point: Here a low-rent lease between plaintiff corporation and defendants (one of whom was a member of plaintiff’s board) was voidable because the lease was not approved by a majority of disinterested directors. Defendants sublet the leased premises for a much higher rent without plaintiff corporation’s knowledge and thereby breached their fiduciary duty to the corporation.

 

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DEFENDANT’S MOTION TO COMPEL PLANTIFF TO APPEAR FOR A PSYCHIATRIC EXAMINATION (INDEPENDENT MEDICAL EXAMINATION [IME]) SHOULD HAVE BEEN GRANTED BECAUSE PLAINTIFF HAD PLACED HER MENTAL CONDITION IN CONTROVERSY; DEFENDANT’S MOTION TO VACATE THE NOTE OF ISSUE SHOULD HAVE BEEN GRANTED BECAUSE DISCOVERY WAS NOT COMPLETE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s motions to compel plaintiff to appear for an independent medical examination (IME) and to vacate the note of issue should have been granted:

We find that plaintiff’s mental condition is, in fact, in controversy. Plaintiff requests compensatory damages only for her alleged emotional distress, and she has testified that she experienced depression, anxiety, and dizziness, as well as headaches brought on by severe mental anguish (CPLR 3121[a]). As a result, a mental examination by a psychiatrist is warranted to enable defendants to rebut plaintiff’s causes of action for emotional distress … .

… [W]e grant defendants’ motion to vacate the note of issue. Contrary to the certificate of readiness, discovery had not been completed, as plaintiff had not yet complied with the court’s directive to submit a Jackson affidavit detailing the process she had undertaken to search her social media post … . Lopez v Bendell, 2022 NY Slip Op 03990, First Dept 6-21-22

Practice Point: Plaintiff had placed her mental condition in controversy by testifying about depression, anxiety, dizziness and headaches caused by mental anguish. Defendant was therefore entitled to compel a psychiatric exam (an independent medical examination [IME]). Here defendant’s motion to vacate the note of issue should have been granted because defendant’s discovery was not complete.

 

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SUPREME COURT DID NOT HAVE THE DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND A COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED FOR LACK OF STANDING BY THE APPELLATE DIVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, over a two-justice dissent, determined Supreme Court did not have the discretion to grant leave to amend a complaint which had been dismissed by the First Department for lack of standing. After the appeal, plaintiff had cured the standing defect and Supreme Court allowed the amendment after the time-period to commence a new action (CPLR 205(a)) had expired:

This appeal raises the interesting question of whether a trial court has the discretion to grant a plaintiff leave to amend a complaint, pursuant to CPLR 3025 (b) … , after the Appellate Division has already ordered the complaint dismissed, with direction to enter judgment. We dismissed the complaint because plaintiffs, as non-managing members of a manager-managed Delaware limited liability company, lacked capacity … or standing to act on behalf of the Company when they obtained a Certificate of Revival of the Company before filing a second amended complaint. After plaintiffs purportedly remedied this deficiency of proper standing, they sought to revive the dismissed action by seeking leave to file a third amended complaint. As aforementioned, after we had already ordered the complaint dismissed, the motion court granted plaintiffs leave to file the third amended complaint. At the time plaintiffs sought leave to amend, the time to commence a new action had expired, including the six-month grace period provided by CPLR 205(a). … Under these circumstances, we find that the trial court lacked discretion to grant plaintiffs leave to amend a complaint that had already been dismissed by this Court. * * *

Given this Court’s outright dismissal of the claims based on a finding of lack of standing, there was no action pending when plaintiffs moved for leave to file the third amended complaint. Thus, the trial court lacked any discretion or authority to grant plaintiffs such leave, where we had properly dismissed the second amended complaint before plaintiffs filed the motion to amend … .Favourite Ltd. v Cico, 2022 NY Slip Op 03987, First Dept 6-21-22

Practice Point: Once the complaint was dismissed for lack of standing by the First Department, there was no pending action. Once the time for commencing a new action pursuant to CPLR 205(a) had expired plaintiff was out of luck. Supreme Court did not have the discretion to grant plaintiff’s motion to amend the complaint after it had been dismissed by the First Department.

 

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