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PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT.

The Fourth Department determined Supreme Court should have sanctioned plaintiff for disregarding a court order and submitted a materially false affidavit:

Pursuant to 22 NYCRR 130-1.1 (a), a court may award to any party fees and costs resulting from frivolous conduct, i.e., conduct that is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; . . . [or that is] undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or . . . asserts material factual statements that are false” (22 NYCRR 130-1.1 [c]). Factors to consider in determining whether the conduct undertaken was frivolous include “the circumstances under which the conduct took place,” and whether “the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party” (id.).

Here, plaintiff’s conduct was clearly frivolous inasmuch as she submitted an affidavit that disregarded a court order and, in response to a second order, she submitted a second affidavit that contained a material falsehood. When that conduct is viewed along with plaintiff’s failure to comply with discovery demands and other orders, we conclude that it was an abuse of discretion for the court to refuse to sanction plaintiff. Place v Chaffee-Sardinia Volunteer Fire Co., 2016 NY Slip Op 06588, 4th Dept 10-7-16

 

CIVIL PROCEDURE (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)/FRIVOLOUS CONDUCT (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)/SANCTIONS (PLAINTIFF SHOULD HAVE BEEN SANCTIONED FOR DISREGARDING A COURT ORDER AND SUBMISSION OF A MATERIALLY FALSE AFFIDAVIT)

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DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS.

The Fourth Department determined defendant was entitled to a hearing on her motion to vacate her conviction on ineffective assistance grounds. Defendant testified her husband’s neck was cut in a struggle for the knife her husband had used to attack her. The People apparently argued defendant’s wounds were self-inflicted. There was evidence of a wound behind defendant’s left armpit which could not have been self-inflicted. The Fourth Department held that defense counsel’s failure to show the jury the wound, failure to engage an expert concerning the wound, failure to examine defendant’s clothing and failure to show the clothing to the jury could amount to ineffective assistance of counsel because such evidence would demonstrate the wound behind the armpit was not surgical in origin (as was argued at trial). A hearing, therefore, should have been held:

Defendant … submitted an affirmation from her appellate counsel, who examined the shirts and asserted that, contrary to the testimony of the … prosecution witness, the holes in the shirts matched precisely the location of defendant’s alleged stab wound behind her left armpit. At oral argument of the motion, appellate counsel urged the court to examine the garments before ruling on the motion. The court declined to do so and denied defendant’s motion without a hearing.

We conclude that, if, as appellate counsel asserts, there are holes in the shirts defendant was wearing at the time of the altercation matching the wound behind her left armpit, in the absence of some strategic explanation, the failure of defendant’s trial attorney to examine that clothing, coupled with his failure to call a medical expert to discuss the wound and to show the wound to the jury, would have been so ” egregious and prejudicial’ ” as to deprive defendant of a fair trial … . Because defendant’s “submissions [thus] tend[ ] to substantiate all the essential facts’ necessary to support [her] claim of ineffective assistance of counsel” … , we conclude that the court should have held a hearing on the motion … . People v Smith, 2016 NY Slip Op 06565, 4th Dept 10-7-16

 

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)

STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION.

The Fourth Department, reversing defendant’s conviction, determined the People’s notice to defendant about the time and place the grand jury presentation would take place was deficient. The prosecutor told defense counsel the presentation would take place the next day:

Here, we conclude that, after receiving defendant’s March 1, 2013 request to appear before the grand jury, the People did not provide defendant with notice “of the time and place of the grand jury presentation” … , as is required by CPL 190.50 (5) (b), and we therefore reverse. We note that, on March 25, 2013, the People sent a letter to defense counsel stating that, “during the week of April 8, 2013, the Erie County Grand Jury will hear testimony concerning this matter. In accordance with CPL 190.50, should your client wish to testify, please clearly state so, in writing, no later than April 5, 2013, so that I can make the necessary arrangements to receive his testimony.” Although that letter would have been sufficient to satisfy the initial and separate requirement set forth in CPL 190.50 (5) (a) that the People notify defendant of his right to appear before the grand jury … , the letter did not satisfy the requirements of CPL 190.50 (5) (b) to inform defendant of the time and place of the grand jury presentation, which were triggered by defendant’s March 1, 2013 request to appear before the grand jury. It is of no moment that defendant did not respond to the People’s letter because nothing in CPL 190.50 requires a defendant to resubmit a valid notice pursuant to CPL 190.50 (5) (a) when he has already done so. We further note that the prosecutor’s oral statement to defense counsel on April 10, 2013 that “he will be presenting the matter to the Erie County Grand Jury the next day” was insufficient to satisfy the notice requirement inasmuch as it did not provide defendant with the requisite notice of the time and place of the grand jury presentation … . People v Moss, 2016 NY Slip Op 06587, 4th Dept 10-7-16

CRIMINAL LAW (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)/GRAND JURY (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)

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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)

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