You are here: / Fourth Department

Tag Archive for: Fourth Department

, , , ,

Discovery of Trade Secrets Should Have Been Allowed Upon Execution of Confidentiality Agreement, Documents Indispensable to Defense and Not Otherwise Available

The Fourth Department determined Supreme Court should have allowed discovery of documents from MREC which included trade secrets because the documents were indispensable to the defense and were otherwise unavailable:

We agree … that Supreme Court abused its discretion in denying the cross motion insofar as it sought to condition disclosure of the documents on plaintiff’s execution of a confidentiality agreement … . We therefore modify the order accordingly. “Discoverability of such documents involves a two-fold analysis: the moving party must show that the discovery demand would require it to reveal a trade secret, which then shifts the burden of the responding party to show that the information was indispensable to proving its [case]”… . Here, MREC met its burden of establishing that the documents sought by plaintiff contained information “not known by those outside the business, [and that the documents] were kept under lock and key, were the product of substantial effort and expense, and could not be easily acquired or duplicated” … . We nevertheless conclude that plaintiff established that the documents sought “were indispensable to [its] case and were otherwise unavailable if they could not be obtained from [MREC]”  … . Conley & Son Excavating Co Ltd v Delta Alliance LLC, 2014 NY Slip Op 06468, 4th Dept 9-26-14

 

,

Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

The Fourth Department dismissed an attempted murder charge because “the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges”… . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

Contrary to defendant’s … contention, Supreme Court did not err in refusing to suppress identification evidence. ” Multiple photo identification procedures are not inherently suggestive’ ” … . “While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures’ ” … . Here, although there was not a significant lapse of time between the presentation of the arrays …, the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array … .

We … conclude that the court did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes … . Here, the People met their initial “burden at the Huntley hearing of establishing that defendant’s . . . statements were not the product of improper police conduct’ ” … , and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced”…. .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

,

Explicit Verbal Waiver of Miranda Rights Not Required

The Fourth Department determined that the absence of an express waiver of defendant’s Miranda rights did not require suppression of his statement:

…[D]efendant contends that the evidence at the Huntley hearing demonstrates that he did not waive his Miranda rights, but that he asked the arresting officer “[w]hat’s going on” after the arresting officer read him the Miranda warnings. Contrary to defendant’s contention, the court properly refused to suppress those statements. It is well settled that “an explicit verbal waiver is not required; an implicit waiver may suffice and may be inferred from the circumstances” … . Thus, “[w]here, as here, a defendant has been advised of his Miranda rights and within minutes thereafter willingly answers questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights’ ” … . People v Jones, 2014 NY Slip Op 06452, 4th Dept 9-26-14

 

, ,

Continuing Representation Doctrine (Tolling the Statute of Limitations) Explained

The Fourth Department reversed Supreme Court finding that the legal malpractice actions should not have been dismissed as time-barred because there were questions of fact whether the continuing representation doctrine tolled the statute of limitations.  The plaintiff Town alleged that defendant lawyers did not advise the Town of the proper procedure for appointing a hearing officer, which resulted in the annulment of a proceeding terminating a Town employee.  The question was whether the attorneys’ subsequent involvement in attempting to rectify the mistake constituted continuing representation such that the three-year statute was tolled:

Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, “ongoing and developing phases of the [same] litigation” … . We cannot say as a matter of law that all of defendants’ acts “were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation” to perform the specific task of terminating a Town employee … . Inasmuch as “[a] question of fact exists on this issue, . . . summary judgment is inappropriate” … .

We further conclude that there are triable issues of fact whether the gaps in the legal services that defendants performed for the Town were “merely . . . period[s] absent expectations, rather than . . . period[s] when representation formally ended” … . Here … the Town “immediately return[ed] to [defendants] . . . once an issue arising from [the alleged] malpractice [was] detected” … .

Although defendants correctly contend that the continuous representation doctrine requires that there be ” continuing trust and confidence in the relationship between the parties’ ” … , there are triable issues of fact whether the Town ever lost such trust and confidence in defendants. Town of Amherst v Weiss, 2014 NY Slip Op 06411, 4th Dept 9-26-14

 

, , , , ,

Sheriff’s (Lack of) Liability Under Respondeat Superior, Elements of Malicious Prosection, Abuse of Process, False Imprisonment and Libel Per Se Explained

In a lengthy and detailed decision the Fourth Department explained the negligence actions against the sheriff based on respondeat superior were properly dismissed, the action for malicious prosecution was properly dismissed (because the underlying criminal action was not dismissed on the merits and could be renewed), but the actions for abuse of process, false imprisonment, and libel per se should not have been dismissed.  The decision is too lengthy to summarize here, but it includes detailed explanations of the sheriff’s immunity from suit under respondeat superior and the elements of malicious prosecution, abuse of process, false imprisonment, and libel per se. The action stemmed from the allegation plaintiff was falsely accused of stealing a computer.  D’Amico v Correctional Med Care Inc, 2014 NY Slip Op -5737, 4th Dept 8-8-14

 

, ,

Criteria for “Apparent Authority” to Enter a Binding Contract, Including the “Apparent Authority” of a Member of a Limited Liability Corporation, Explained

In determining the criteria for apparent authority, including apparent authority under the Limited Liability Corporation Law, had been met, the Fourth Department held that member of the defendant limited liability corporation (Sultan) entered into a binding contract on behalf of the defendant corporation:

“Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority. Rather, the existence of apparent authority depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent” … . Here, we conclude that plaintiffs reasonably relied on, inter alia, their prior course of dealing with Sultan in his capacity as president, principal and manager of defendant … . * * *

…[W]e note that Limited Liability Company Law § 412 (a) provides that, “[u]nless the articles of organization of a limited liability company provide that management shall be vested in a manager or managers, every member is an agent of the limited liability company for the purpose of its business, and the act of every member, including the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way the business of the limited liability company, binds the limited liability company, unless (i) the member so acting has in fact no authority to act for the limited liability company in the particular matter and (ii) the person with whom he or she is dealing has knowledge of the fact that the member has no such authority.” A nearly identical subsection provides that, where management of an LLC is vested in a manager, the acts of the manager are binding upon the LLC unless the manager at issue has in fact no authority to act for the LLC, and the person with whom he or she is dealing knows that the manager lacks such authority (§ 412 [b] [2] [A], [B]). Thus, regardless whether Sultan was acting as a manager of defendant, as reflected by his signature on the contract, or as a member of defendant, as he and defendant’s attorney previously had indicated to plaintiffs, he had apparent authority to act and his acts were binding upon defendant unless, inter alia, plaintiffs had “knowledge of the fact that [Sultan] ha[d] no such authority” … . Pasquarella v 1525 William St LLC, 2014 NY Slip Op 05745, 4th Dept 8-8-14

 

,

Decision Offers a Rare, Detailed Discussion of the Probable-Cause Analysis of a Search Warrant Application Which Included Hearsay from Confidential Informants (Analyzed Under the Aguilar-Spinelli Reliability Tests), Controlled Buys and Surveillance

In a rare, detailed analysis of the sufficiency of a search warrant application which relied on confidential informants, surveillance, controlled buys, and hearsay found sufficient under the Aguilar-Spinelli tests, the Fourth Department determined the motion to suppress was properly denied.  The decision is notable for the depth of discussion and the full range of issues involved in the analysis of a search warrant application. People v Myhand, 2014 NY Slip Op 05742, 4th Dept 8-8-14

 

In a Matter of First Impression, the Fourth Dept Determined that Criminal Records Are Eligible for Sealing Pursuant to CPL 160.58 Even If They Relate to Convictions that Predate the Statute

The Fourth Department, in a full-fledged opinion by Justice Whalen, determined that criminal records are eligible for sealing pursuant to Criminal Procedure Law 160.58 even if they related to convictions that predate the statute. People v M.E., 2014 NY Slip Op 05748, 4th Dept 8-8-14

 

,

Where the Manufacturer Was Not At Fault in a Products Liability Action, the Retailer Is Not Entitled to Indemnification for the Costs of Defending the Action from the Manufacturer

The Fourth Department determined a downstream retailer (GE) was not entitled to indemnification from and upstream manufacturer (Carrier) when both have been absolved of fault in a products liability action.  The basis of the action was a fire which was alleged to have been caused by an air conditioner manufactured by Carrier and marketed and sold by GE.  It was ultimately determined the fire was not caused by the air conditioner.  GE sought indemnification from Carrier for the costs associated with the lawsuit:

The issue in this case is whether GE, a downstream retailer, is entitled to recoup its costs in defending a products liability action from Carrier, an upstream manufacturer, when they both are ultimately absolved of liability. We conclude that GE is not entitled to recoupment, and we therefore affirm.

Indemnification is grounded in the equitable principle that the party who has committed a wrong should pay for the consequences of that wrong … . Thus, New York courts have consistently held that “common-law indemnification lies only against those who are actually at fault” …, i.e., the “actual wrongdoer” … . In the products liability context, a manufacturer is held accountable as a “wrongdoer” when it releases a defective product into the stream of commerce …, and “innocent” sellers who merely distribute the defective product are entitled to indemnification from the at-fault manufacturer … . That common-law right of indemnification “encompasses the right to recover attorneys’ fees, costs, and disbursements incurred in connection with defending the suit brought by the injured party” … . * * *

Where, as here, it is ultimately determined that the subject product is free from defect, there is no “fault” or “wrongdoing” on the part of the manufacturer… . Bigelow v General Elec Co, 2014 NY Slip Op 05727, 2nd Dept 8-8-14

 

Fall Into a Three-to-Four-Foot-Deep Hole Is Not an Elevation-Related Event Under Labor Law 240(1)

The Fourth Department determined that falling into a hole is not an “elevation-related event” within the meaning of Labor Law 240(1).  The court further determined that regulation requiring that an excavation near a “sidewalk, street or highway or other area lawfully frequented by any person…” be guarded or covered did not apply to employees at a work site. With respect to the elevation requirement for section 240(1), the court wrote:

Where, as here, a plaintiff falls into a hole while walking at ground level, the plaintiff’s injury “[is] not caused by [defendants’] failure to provide or erect necessary safety devices in response to elevation-related hazards,’ and, accordingly, the protections of Labor Law § 240 (1) do not apply” … . The cases relied upon by plaintiff are factually distinguishable because they involve falls into excavated areas, as opposed to mere holes in the ground such as the one here … . Unlike the excavation cases, this is not a case where protective devices enumerated in Labor Law § 240 (1), e.g., “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes” were designed to apply… . Wrobel v Town of Pendelton, 2014 NY Slip Op 05738, 4th Dept 8-8-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy