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THE TRANSCRIBED RECORD IS WOEFULLY INCOMPLETE; DEFENDANT DID NOT DEMONSTRATE THE RECORD COULD NOT BE RECONSTRUCTED; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, holding the case and reserving decision, remitted the matter for reconstruction of the record which was missing several vital parts:

… [M]issing and otherwise defective transcripts from the trial preclude appellate review of defendant’s conviction. Indeed, the present state of the record on appeal is “deplorable” … inasmuch as it is missing, inter alia, three days of jury selection, opening statements, summations, final jury instructions, County Court’s handling of a jury note, and the verdict. In addition, the transcription of the testimony of some of the witnesses includes irregularities such as notations stating “omitted,” “untranscribable,” and “blah, blah,” and unintelligible strings of characters that appear to be in code. We reject defendant’s contention, however, that summary reversal and a new trial is the appropriate remedy at this point. The “loss of reporter’s minutes is rarely sufficient reason in itself for reversing a conviction” … . The Court of Appeals has held that “the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him [or her] a perfect trial or a perfect appeal” … . “To overcome the presumption of regularity, a defendant must show not only that minutes are missing, but also ‘that there were inadequate means from which it could be determined whether appealable and reviewable issues were present’ ” … . It is only when a defendant shows that a reconstruction is not possible that a defendant is entitled to summary reversal and a new trial … .

Here, we conclude that defendant failed to establish that alternative means to provide an adequate record are not available … .There is no indication that defendant’s former attorneys could not participate in a reconstruction hearing, despite the fact that one of them is now employed by the District Attorney’s Office. There is also no indication that the now-retired trial judge could not participate as well … . People v Meyers, 2021 NY Slip Op 00919, Fourth Dept 2-11-21

 

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ALTHOUGH DEFENDANT ACTED SUSPICIOUSLY THE POLICE DID NOT HAVE A REASONABLE SUSPICION HE WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME DEFENDANT FLED; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the police did not have reasonable suspicion defendant was involved in criminal activity at the time he fled and the police pursued him. Therefore his suppression motion (re: a discarded weapon and statements) should have been granted and the indictment dismissed. Defendant was a passenger in the back seat of a car stopped for a traffic infraction. When the occupants were asked to step out of the car, defendant ran:

… [T]he officers stopped the vehicle for a traffic infraction as opposed to a call related to a particular crime. Although defendant appeared to reach toward his waistband, he never touched his waistband and there was no other indication of a weapon, such as a bulge or the visible outline of a gun … . A suspect’s action in grabbing at his or her waistband, standing alone, is insufficient to establish reasonable suspicion of a crime … .

Defendant’s nervousness, use of a bottle cap, and “blading” do not provide additional specific circumstances indicating that defendant was engaged in criminal activity. There is no doubt that defendant engaged in furtive and suspicious activity and that his pattern of behavior, viewed as a whole, was suspicious, but there is nothing in this record to establish that the officers had a reasonable suspicion of criminal conduct to justify the pursuit … . People v Williams, 2021 NY Slip Op 00983, Fourth Dept 2-11-21

 

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THERE WAS A QUESTION OF FACT WHETHER THE LEVEL OF CONTROL EXERCISED BY THE DEFENDANT OVER THE CONSTRUCTION WAS SUCH THAT HE WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION IN THIS LABOR LAW 240(1) AND 241(6 ACTION; COMPLAINT REINSTATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this Labor Law 240 (1) and 241 (6) action should not have been granted. Plaintiff fell from an unsecured ladder used to get from the basement to the first floor of the building under construction. Supreme Court had ruled the statutory homeowner’s exemption insulated the defendant from liability:

… [P]laintiff testified that defendant supplied the ladders that were used by the contractors, and the nonparty contractor testified that defendant was on site giving direction nearly every day. The nonparty contractor had asked defendant several times prior to plaintiff’s accident for permission to build stairs from the basement to the first floor, insisting that it was necessary to allow for safer and easier access to the first floor. Although defendant was aware that workers had been entering the house through the basement and using a ladder to access the first floor, he refused permission to build the stairs until after plaintiff’s accident, at which time defendant immediately directed the nonparty contractor to build the stairs. Such participation goes “far beyond ‘[a] homeowner’s typical involvement in a construction project’ ” … .. Indeed, the nonparty contractor further testified that a real estate limited liability company of which defendant was a member had hired him to perform work on the construction of a six-story building, suggesting that defendant had a degree of “sophistication or business acumen” such that he was in a position to know about and insure himself against his exposure to absolute liability … . O’Mara v Ranalli, 2021 NY Slip Op 00982, Fourth Dept 2-11-21

 

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AN AMENDED STIPULATED ORDER CONCERNING THE WIFE’S INTEREST IN THE HUSBAND’S LIFE INSURANCE AND 401k IN THE CONTEXT OF AN ONGOING DIVORCE ACTION, ISSUED AFTER THE HUSBAND’S DEATH, WAS WITHOUT EFFECT EVEN THOUGH THE ORGINAL STIPULATED ORDER WAS ISSUED ONE DAY BEFORE THE HUSBAND’S DEATH; THE DIVORCE ACTION ABATED UPON THE HUSBAND’S DEATH (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the death of the husband abated the divorce action and an “amended stipulated order” issued after the husband’s death concerning the wife’s interest in the husband’s insurance policy and 401k account was without effect. The original stipulated order had been issued one day before the husband’s death:

It is well settled that “where one party to a divorce action dies prior to the rendering of a judicial determination which dissolves or terminates the marriage, the action abates inasmuch as the marital relationship between the parties no longer exists” … . “Although an exception to this rule exists where the court has made a final adjudication of divorce but has not performed ‘the mere ministerial act of entering the final judgment,’ ” that exception does not apply here inasmuch as the court had merely granted some pretrial orders but had not made any final adjudication of divorce … . In this instance, the husband’s death “abated the . . . action for a divorce and ancillary relief” … . Adams v Margulis, 2021 NY Slip Op 00971, Fourth Dept 2-11-21

 

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THE JUDGE WHO DISMISSED THE ACTION PURSUANT TO CPLR 205 (a) FOR FAILURE TO PROSECUTE DID NOT PLACE ON THE RECORD THE SPECIFIC CONDUCT CONSTITUTING NEGLECT; THEREFORE THE ACTION WAS TIMELY FILED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the action should not have been dismissed because the tolling provisions of CPLR 205 (a) applied. The judge who dismissed the action did not place on the record specific conduct constituting neglect to prosecute demonstrating a general pattern of delay:

… [T]he tolling provisions of CPLR 205 (a) apply inasmuch as the 2012 action was not dismissed for neglect to prosecute. CPLR 205 (a) provides, in relevant part, that “[i]f an action is timely commenced and is terminated in any other manner than by . . . a dismissal of the complaint for neglect to prosecute the action . . . , the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination,” even though the new action would otherwise be barred by the statute of limitations. “Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … .

Here, it is undisputed that the 2012 action was timely commenced and that the instant action was commenced within six months of the termination of the 2012 action. …

Here, the court did not outline a general pattern of delay by plaintiff in its order dismissing the 2012 complaint or in the attached decision … . Broadway Warehouse Co. v Buffalo Barn Bd., LLC, 2021 NY Slip Op 00963, Fourth Dept 2-11-21

 

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THE PEOPLE DID NOT OBTAIN PERMISSION TO PRESENT TO A SECOND GRAND JURY RENDERING THE SECOND INDICTMENT VOID (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the indictment to which defendant plead guilty was void because the People did not obtain the court’s permission to present to a second grand jury after the first indictment was dismissed:

… [T]he People failed to seek leave pursuant to CPL 210.20 (4) to resubmit the matter to a second grand jury after County Court granted that part of defendant’s omnibus motion seeking to dismiss the original indictment as against him on the ground that the evidence before the first grand jury was legally insufficient. “[T]he failure to obtain leave of court to present a matter to a second grand jury, where required, deprives the grand jury of jurisdiction to hear the matter, thereby rendering the indictment void . . . , which, in turn, deprives the court of jurisdiction” … . Although, here, defendant failed to make a motion to dismiss the indictment issued by the second grand jury pursuant to CPL 210.20 (1), the failure of the People to obtain from the court authorization to submit the matter to the second grand jury deprived the second grand jury of jurisdiction to hear the matter, thereby rendering void the indictment issued by the second grand jury and depriving the court of jurisdiction, and the right to challenge a lack of jurisdiction cannot be waived by defendant … . Under these circumstances, we must dismiss the indictment issued by the second grand jury that is at issue on this appeal … . We note that there is no limit to the number of times that the People may resubmit a charge to a grand jury with leave pursuant to CPL 210.20 (4) … . People v Owens, 2021 NY Slip Op 00958, Fourth Dept 2-11-21

 

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IN THIS DENTAL MALPRACTICE ACTION, PLAINTIFF RAISED ISSUES OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS, THE DEVIATION FROM THE STANDARD OF CARE, AND THE LACK OF INFORMED CONSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this dental malpractice action, determine there were questions of fact about (1) the applicability of the continuous treatment doctrine to toll the statute of limitations, (2) the deviation from the standard of care, and (3) the lack of informed consent:

The instant case does not involve gaps in treatment longer than the 2½-year statute of limitations … , and “a discharge by a physician [or dentist] does not preclude application of the continuous treatment toll if the patient timely initiates a return visit to complain about and seek further treatment for conditions related to the earlier treatment” … . …

… [B]y submitting the affidavits of her experts, plaintiff raised issues of fact whether defendants deviated from the standard of care and whether such deviation was a proximate cause of plaintiff’s injuries … . …

… [P]laintiff raised an issue of fact whether she would have opted for extraction of several teeth and placement of implants had she been fully informed … . Bellamy v Baron, 2021 NY Slip Op 00953, Fourth Dept 2-11-21

 

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FRAUD WAS NOT ADEQUATELY PLED, THE SIX-YEAR STATUTE OF LIMITATIONS DID NOT APPLY TO THE FRAUD ALLEGATIONS, THE JUDICIARY LAW 487 CAUSE OF ACTION WAS NOT ADEQUATELY PLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the fraud and Judiciary Law 487 causes of action should have been dismissed. All of the elements of fraud were not pled with particularity, the six-year statute of limitations did not apply because the fraud allegations were identical to the injurious falsehood and tortious interference claims, and the Judiciary Law 487 causes of actions did not relate to any proceedings before the court:

Although fraud claims are generally governed by a six-year statute of limitations (see CPLR 213 [8]), “courts will not apply the fraud [s]tatute of [l]imitations if the fraud allegation is only incidental to the claim asserted; otherwise, fraud would be used as a means to litigate stale claims” … . “In classifying a cause of action for statute of limitations purposes, the controlling consideration is not the form in which the cause of action is stated, but its substance” … . Inasmuch as the gravamen of plaintiffs’ fraud claim is that plaintiffs suffered reputational damages and a loss of goodwill as a result of defendants’ conduct and that [plaintiff] lost its contract … as a result of defendants’ fraudulent scheme, we conclude that the fraud allegation is incidental to the injurious falsehood and tortious interference claims, which were dismissed by the court as time-barred.

… [T]he court erred in denying that part of the motion seeking to dismiss the ninth cause of action, for violations of Judiciary Law § 487 … .Under section 487 (1), an attorney who “[i]s guilty of any deceit or collusion . . . with intent to deceive the court or any party,” is guilty of a misdemeanor and is potentially liable for treble damages to be recovered in a civil action. A violation of the statute may be established by evidence of the defendant’s alleged deceit … but “alleged deceit that is not directed at a court must occur in the course of ‘a pending judicial proceeding’ ” … .

… The complaint failed to allege, however, that [defendant law firm] engaged in egregious misconduct or made a material false statement in the course of a judicial proceeding. The allegedly deceitful memorandum was not directed at the court, and the complaint failed to allege that it was promulgated during a pending judicial proceeding … . Dreamco Dev. Corp. v Empire State Dev. Corp., 2021 NY Slip Op 00952, Fourth Dept 2-11-21

 

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CERTAIN TRANSFERS AND LOANS SHOULD NOT HAVE BEEN INCLUDED IN THE CALCULATION FOR THE PERIOD OF MEDICAID INELIGIBILITY (FOURTH DEPT).

The Fourth Department, reversing (modifying) the NYS Department of Health (DOH), determined several transfers and loans made before petitioner was diagnosed with Parkinson’s in 2016 should not have been included in the calculation for the period of Medicaid ineligibility. The facts are too complex to summarize here:

… “T]he relevant standard is not whether [petitioner] could or should have foreseen that nursing home placement might eventually become necessary, but whether she made the requisite showing that the transfers were made ‘exclusively for a purpose other than to qualify for medical assistance’ (Social Services Law § 366 [5] [e] [4] [iii] [B]). The fact that a future need for nursing home care may be foreseeable for a person of advanced age with chronic medical conditions is not dispositive of the question whether a transfer by such a person was made for the purpose of qualifying for such assistance” … . Matter of Underwood v Zucker, 2021 NY Slip Op 00951, Fourth Dept 2-11-21

 

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THE TESTIMONY OF THE ACCOMPLICE WAS SUFFICIENTLY CORROBORATED; THE INDICTMENT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the indictment should not have been dismissed because there was sufficient corroboration of the testimony of an accomplice:

The People contend that County Court erred in determining that the grand jury testimony of defendant’s accomplice was not sufficiently corroborated. We agree. The corroboration requirement is satisfied by evidence that ” ‘tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ ” … . Sufficient corroboration may be provided by evidence that ” ‘harmonize[s]’ ” with the accomplice testimony, i.e., when “read with the accomplice’s testimony, [it] makes it more likely that the defendant committed the offense” … .

Here, the accomplice’s testimony that, on a specific date, defendant and the accomplice had a telephone conversation regarding the alleged criminal conduct is corroborated by defendant’s cell phone records, which establish “that cell phone calls were made as the accomplice[] testified” … . The accomplice’s testimony is also corroborated by, among other things, the testimony of non-accomplices and the transcript of the criminal jury trial during which the charged offenses were allegedly committed  … . People v Baska, 2021 NY Slip Op 00947, Fourth Dept 2-11-21

 

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