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DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS.

The Fourth Department, reversing County Court, determined defendant’s motion to dismiss the marijuana-related indictments should have been granted on speedy trial grounds. The Fourth Department found that defense counsel’s letter asking for a discussion of a plea bargain could not be construed as a waiver of defendant’s speedy trial rights:

Defense counsel did not explicitly state or even suggest in his letter that he was waiving his client’s rights to a speedy trial under CPL 30.30; instead, counsel merely requested an opportunity to discuss a plea bargain before the District Attorney presented the case to the grand jury. In our view, that request does not constitute an explicit and “unambiguous” waiver of defendant’s speedy trial rights … , and we thus conclude that “the People failed to meet their burden of proving that the disputed . . . period was not chargeable to them” … . People v Leubner, 2016 NY Slip Op 06569, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS)/SPEEDY TRIAL (DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS)

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EXPERT’S INABILITY TO QUANTIFY THE EXTENT TO WHICH DEFENDANTS’ CONDUCT DIMINISHED PLAINTIFF’S DECEDENT’S CHANCE OF A BETTER OUTCOME DID NOT JUSTIFY GRANTING DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law (on the issue of causation) should not have been granted. Plaintiff alleged the delay in diagnosing or failure to diagnose plaintiff’s decedent’s condition diminished plaintiff’s decedent’s chance of a better outcome. Plaintiff’s expert’s inability to quantify the extent to which defendants’ conduct diminished the chance of a better outcome did not render the proof insufficient:

In order to establish proximate causation, the plaintiff must demonstrate that the defendant’s deviation from the standard of care “was a substantial factor in bringing about the injury” (PJI 2:70…). Where, as here, the plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby “diminished [the patient’s] chance of a better outcome,” in this case, survival … . In that instance, the plaintiff must present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care … . However, “[a] plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the [patient’s] chance of a better outcome . . . , as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the [patient’s] chance of a better outcome’ … . Clune v Moore, 2016 NY Slip Op 06331, 4th Dept 9-30-16

 

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INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT.

The Fourth Department determined a 17-year-old (Taquilo) could be liable for a dog bite, despite the fact that the dog was owned by his father (Rogelio). The court further determined the punitive damages claim against Taquilo properly survived the motion for summary judgment:

We reject defendants’ contention that Taquilo is relieved of potential liability for the child’s injuries based upon Taquilo’s age at the time of the incident. “It is elementary in this State that an infant may be held civilly liable for damages caused by his [or her] tortious acts” … , and defendants cite no authority to support their contention that an infant cannot be subject to strict liability for harm caused by an animal. Nor is it dispositive that the dog was owned by Taquilo’s father, Rogelio. “Strict liability can . . . be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … . Here, defendants’ own submissions raise issues of fact whether Taquilo harbored the dog … , and whether he knew or should have known of the dog’s vicious propensities … . Cruz v Stachowski, 2016 NY Slip Op 06327, 4th Dept 9-30-16

ANIMAL LAW (DOG BITE, INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)/DOG BITE (INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)/PUNITIVE DAMAGES (DOG BITE, INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)

TO JUSTIFY CIVIL CONFINEMENT, THE DISEASE OR DISORDER ATTRIBUTED TO A SEX OFFENDER NEED NOT BE A SEXUAL DISORDER; SEX OFFENDER’S MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the evidence that the sex offender suffered from a mental abnormality as defined in the  Mental Hygiene Law was sufficient to survive petitioner’s motion for a directed verdict. The court noted that the disease or disorder attributed to the petitioner need not be a sexual disorder:

Pursuant to the Mental Hygiene Law, a person is classified as a dangerous sex offender requiring confinement if that person “suffer[s] from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (§ 10.03 [e]). The statute defines a mental abnormality as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (§ 10.03 [i]). “Section 10.03 (i)’s language congenital or acquired condition, disease or disorder’ is not limited to solely sexual disorders . . . Rather, one may possess a condition, disease or disorder’ that does not constitute a sexual disorder’ but nonetheless affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense’ ” … .

Here, the court relied on Matter of State of New York v Donald DD. (24 NY3d 174) in concluding that, while petitioner’s antisocial personality disorder (ASPD) and psychopathic traits predisposed him to the commission of conduct constituting a sex offense, such disorder and traits, alone or in combination, are not sexual disorders and thus as a matter of law do not constitute a mental abnormality within the meaning of the Mental Hygiene Law. We conclude, however, that the court erred in granting petitioner’s motion for a directed verdict inasmuch as “Donald DD. did not engraft upon the condition, disease, or disorder’ prong a requirement that the condition, disease or disorder’ must constitute a sexual disorder’ ” … . Matter of Suggs v State of New York, 2016 NY Slip Op 06289, 4th Dept 9-30-16

 

MENTAL HYGIENE LAW (TO JUSTIFY CIVIL CONFINEMENT, THE DISEASE OR DISORDER ATTRIBUTED TO A SEX OFFENDER NEED NOT BE A SEXUAL DISORDER; SEX OFFENDER’S MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/SEX OFFENDERS (TO JUSTIFY CIVIL CONFINEMENT, THE DISEASE OR DISORDER ATTRIBUTED TO A SEX OFFENDER NEED NOT BE A SEXUAL DISORDER; SEX OFFENDER’S MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/CIVIL CONFINEMENT (SEX OFFENDERS, MENTAL HYGIENE LAW, TO JUSTIFY CIVIL CONFINEMENT, THE DISEASE OR DISORDER ATTRIBUTED TO A SEX OFFENDER NEED NOT BE A SEXUAL DISORDER; SEX OFFENDER’S MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)

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INSURED NOT ENTITLED TO ATTORNEY’S FEES IN AN AFFIRMATIVE ACTION TO SETTLE THE INSURED’S RIGHTS UNDER THE POLICY.

The Fourth Department, reversing Supreme Court, determined that the plaintiff (the insured) was not entitled to attorney’s fees in an action brought to settle its rights under a policy:

This case is governed by the general rule that attorneys’ fees and other litigation expenses are “incidents of litigation” that the prevailing party may not collect “from the loser unless an award is authorized by agreement between the parties or by statute or court rule” … . Indeed, it is well established that “an insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy” … . Here, there is nothing in the insurance policy that obligates defendant to reimburse or indemnify plaintiff for attorneys’ fees incurred by it in prosecuting an action to enforce the property coverage provisions of the policy, nor does plaintiff refer to any statute or a court rule authorizing its recovery of attorneys’ fees from defendant. Zelasko Constr., Inc. v Merchants Mut. Ins. Co., 2016 NY Slip Op 06328, 4th Dept 9-30-16

 

ANTISUBROGATION RULE DID NOT PRECLUDE RECOVERY TO THE EXTENT RECOVERY EXCEEDED THE LIMITS OF THE RELEVANT POLICY.

The Fourth Department determined the antisubrogation rule prohibited the insurer from recovering under the relevant $1,000,000 policy. But there was no showing that recovery under a $25,000,000 umbrella policy was prohibited by the antisubrogation rule. Therefore recovery to the extent recovery exceeded $1,000,000 was not precluded by the rule:

… [U]nder the antisubrogation rule, “an insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered . . . even where the insured has expressly agreed to indemnify the party from whom the insurer’s rights are derived’ ” … . Conversely, where “the monetary limit of the insurance provided by the . . . policy is for a lesser sum than that sought by the plaintiff as damages, the motion [for summary judgment dismissing] the third-party complaint should have been granted only up to the applicable limits of that policy” … , because “[i]t is black letter law that New York law does not bar insurance companies from seeking indemnification for settlements or judgments that exceed the limits of an insurance policy” … . Mitchell v NRG Energy, Inc., 2016 NY Slip Op 06359, 4th Dept 9-30-16

INSURANCE LAW (ANTISUBROGATION RULE DID NOT PRECLUDE RECOVERY TO THE EXTENT RECOVERY EXCEEDED THE LIMITS OF THE RELEVANT POLICY)/ANTISUBROGATION RULE (INSURANCE LAW, ANTISUBROGATION RULE DID NOT PRECLUDE RECOVERY TO THE EXTENT RECOVERY EXCEEDED THE LIMITS OF THE RELEVANT POLICY)

FORCING DEFENDANT MOTHER TO GO TO TRIAL IN A CUSTODY SUIT WITHOUT AN ATTORNEY, AFTER HER ATTORNEY WITHDREW FOR NONPAYMENT ON THE MORNING OF THE TRIAL, REQUIRED REVERSAL.

The Fourth Department determined Supreme Court’s failure to grant an adjournment to allow mother to find another attorney, after her attorney withdrew on the morning of the custody trial, required reversal:

We conclude that the court abused its discretion in denying defendant’s request for an adjournment … . The record establishes that defendant’s request was not a delay tactic and did not result from her lack of diligence … . We also agree with defendant that the court’s refusal to grant defendant an adjournment to obtain new counsel resulted in the absence of a full and complete record upon which the court could render an adequate and informed decision. “The custody determination of the trial court generally is entitled to great deference . . . , but [s]uch deference is not warranted . . . where the custody determination lacks a sound and substantial basis in the record” … . Zhu v Ye Cheng, 2016 NY Slip Op 06358, 4th Dept 9-30-16

FAMILY LAW (FORCING DEFENDANT MOTHER TO GO TO TRIAL IN A CUSTODY SUIT WITHOUT AN ATTORNEY, AFTER HER ATTORNEY WITHDREW FOR NONPAYMENT ON THE MORNING OF THE TRIAL, REQUIRED REVERSAL)/ATTORNEYS (FAMILY LAW, FORCING DEFENDANT MOTHER TO GO TO TRIAL IN A CUSTODY SUIT WITHOUT AN ATTORNEY, AFTER HER ATTORNEY WITHDREW FOR NONPAYMENT ON THE MORNING OF THE TRIAL, REQUIRED REVERSAL)

SERIOUS-CRIME DEFAMATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined the “serious crime” defamation per se cause of action should have been dismissed. The defamation action stemmed from a letter written to a federal judge by the defendant, in connection with plaintiff-corporation’s pleading guilty to a violation of the Clean Water Act:

Supreme Court erred in denying that part of her pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) insofar as the complaint alleged that defendant committed defamation per se by “charging plaintiff[s] with a serious crime” … . We conclude that certain statements in the letter alleging criminal conduct on the part of plaintiffs do not constitute defamation per se because “reference to extrinsic facts is necessary to give them a defamatory import” … , and that other statements, e.g., accusing plaintiffs of terrorism, do not constitute defamation per se because they are “likely to be perceived as rhetorical hyperbole [or] a vigorous epithet’ ” … . Crane-Hogan Structural Sys., Inc. v Belding, 2016 NY Slip Op 06376, 4th Dept 9-30-16

DEFAMATION (SERIOUS-CRIME DEFAMATION PER SE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)

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NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL.

The Fourth Department, reversing defendant’s conviction, determined that allowing the alleged victim’s testimony from the first trial to be read into evidence in the second trial violated the defendant’s right to confrontation. After the first trial, the victim recanted and told defense counsel and the prosecutor someone else committed the offense. At defendant’s second trial, the victim refused to testify, exercising her 5th amendment right to remain silent. Because the victim could not be asked about her recantation, and therefore no foundation for the recantation evidence could be laid, the victim’s testimony from the first trial was deemed admissible. However, under the facts, the victim’s assertion of her 5th amendment rights required the trial judge to explore whether her testimony in the first trial should be struck because her testimony was central to the prosecution’s case. In addition, the Fourth Department determined the trial judge acted vindictively when a greater sentence was imposed after the second trial:

… [The defendant’s] Sixth Amendment right to confrontation was violated when the victim exercised her Fifth Amendment right to remain silent and refused to answer defense counsel’s questions regarding the recantation of her testimony because the court failed in its duty “[to] explore whether [she] ha[d] essentially refused to testify on questions of matters so closely related to the commission of the crime[s] that [some or all of her] testimony . . . [from the first trial] should be stricken” … . We note, too, that the victim’s testimony is central to the People’s case … and, given that we have previously determined that the evidence against defendant is “less than overwhelming” … , we cannot conclude that the court’s error is harmless … .

We therefore reverse the judgment and grant a new trial on counts one, two and four of the indictment. In the interest of judicial economy, we exercise our power to review as a matter of discretion in the interest of justice defendant’s contention that the court failed to rebut the presumption of vindictiveness when it imposed a greater sentence than was imposed following the first trial … . The People correctly concede that the court failed to identify ” conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ ” to justify an increased sentence … , and thus we conclude that the court erred in increasing the sentence after the retrial … . People v Hicks, 2016 NY Slip Op 06334, 4th Dept 9-30-16

 

CRIMINAL LAW (NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)/EVIDENCE (CRIMINAL LAW, NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)/RECANTATION (CRIMINAL LAW, NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)/SENTENCING (TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL)

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EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE.

The Fourth Department determined items seized from defendant’s person at the time he was detained should have been suppressed. However, a subsequent show-up identification, statements, and items found where defendant was initially seized were not fruit of the poisonous tree:

Defendant contends that he was unlawfully arrested prior to the showup identification procedure and that all of the physical evidence, as well as the identification testimony and his statements, must be suppressed as fruit of the poisonous tree. We agree with defendant that the items seized from his person should have been suppressed because the police did not have probable cause at that time to arrest him and conduct a search incident to an arrest. We conclude that the police had reasonable suspicion to pursue defendant and detain him for the purpose of the showup identification … . But although the police were permitted at that time to conduct a pat frisk of defendant … , they were not permitted to search him.

We reject defendant’s contention, however, insofar as he asserts that the remaining evidence must be suppressed as fruit of the poisonous tree. It is well settled that “only evidence which is the fruit of the poisonous tree’ should be excluded” … . In other words, “only evidence which has been come at by exploitation of that illegality should be suppressed” … . Here, defendant did not meet his burden of establishing that the showup identification of him, his statements to the police, and the items seized in the courtyard, were causally related to his unlawful arrest prior to the showup identification procedure … , i.e., that such evidence was ” obtained by exploitation’ ” of the illegal arrest … . People v Ashford, 2016 NY Slip Op 06365, 4th Dept 9-30-16

 

CRIMINAL LAW (EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE)/EVIDENCE (CRIMINAL LAW, EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE)/SUPPRESSION (CRIMINAL LAW, EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE)

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