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Statute of Limitations for Article 78 “Mandamus to Compel;” Doctrine of Laches Applied

The Fourth Department affirmed the dismissal (as untimely) of an Article 78 proceeding against the City of Buffalo and others which sought to compel the city to investigate two fires pursuant to General Municipal Law section 204-d.  The Fourth Department explained when the four-month statute of limitations in this “mandamus to compel” action was triggered and applied the doctrine of laches:

…[T]the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law”… . In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1];…). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs”…. Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” ….  Matter of Van Tol v City of Buffalo…, 582, 4th Dept 6-28-13

 

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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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Appellate Court Recognized Prior Decision Was “Clearly Erroneous” and Did Not Hold Trial Court to It

The Fourth Department noted that a trial court is bound by an appellate decision, even if the decision is wrong.  However, in this case, the Fourth Department upheld the trial court’s modification, acknowledging that its prior decision should not be followed:

It is well settled that, until a decision of this Court is “ ‘modified or reversed by a higher court, . . . the trial court is bound by our decision’ ”…, regardless of whether our decision was correctly decided….  We thus conclude that the Surrogate erred in failing to comply with our prior decision. Nevertheless, this Court is not likewise required to follow our prior decision under the doctrine of law of the case.    Indeed, for the reasons that follow, we conclude that we should not apply the doctrine of law of the case herein, and we therefore affirm the modified decree … .“As the doctrine of . . . law of the case is not one of inflexible law, but permits a reasoned exercise of a certain degree of discretion in its application, the better rule is that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust . . . [T]he effect of a prior ruling by an appellate court in a later appeal before that court, or in a subsequent stage of the same appeal before that court, presents the problem of balancing the interest in foreclosing reconsideration of the prior decision with the desire for a just result . . .  We recognize that our earlier decision was “clearly erroneous”…, as “shown by contrary authority emanating from [the Court of Appeals,] whose rulings . . . are controlling”…. We also conclude that “correction of the error made on the former appeal [will] create no injustice or hardship, [inasmuch as] no change has been made in the status of the parties in reliance upon the ruling in the former appeal” ….  Matter of Ladelfa, 580, 4th Dept, 6-14-13

 

Sovereign Immunity Did Not Apply to Golf Course Owned by Seneca Nation

The Fourth Department, in a full-fledged opinion by Justice Peradotto, determined the Lewiston Golf Course Corporation (LGCC) was not an “arm” of the Seneca Nation and, therefore, was not entitled to sovereign immunity and could be sued in New York courts:

It is well settled that “Indian tribes are immune from lawsuits in both state and federal court unless ‘Congress has authorized the suit or the tribe has waived its immunity’ ” … . Less settled is the law governing whether, and to what extent, economic entities created by a tribe share in the tribe’s immunity from suit … .“Tribal subagencies and corporate entities created by the Indian Nation to further governmental objectives, such as providing housing, health and welfare services, may also possess attributes of tribal sovereignty, and cannot be sued absent a waiver of immunity” ….    The critical question is “whether the entity acts as an arm of the tribe so that its activities are properly deemed to be those of the tribe” … , i.e., whether the entity is “so closely allied with and dependent upon the [t]ribe that it is entitled to the protection of tribal sovereign immunity”….… [W]e conclude that LGCC is not an “arm” of the Nation and therefore falls outside the Nation’s cloak of sovereign immunity … .  Sue/Perior Concrete & Paving Inc v Lewiston Golf Course Corporation …, 478, 4th Dept, 6-14-13

 

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Oral Evidence in Quantum Meruit Case Rejected by Appellate Court

In vacating a damages award in a quantum meruit case, the Fourth Department concluded the self-serving oral proof offered by plaintiff should not have been accepted as sufficient by the trial court and that the defendants’ proof of the value of plaintiff’s work should be the basis of damages award:

Plaintiff is correct that “[p]roof of damages may be based upon oral testimony alone, so long as the witness has knowledge of the actual costs”…, and that the customary means of calculating damages on a quantum meruit basis in a construction case is actual job costs plus profit minus amount paid…. Nevertheless, we cannot conclude that the court’s award of $31,720 is supported by a fair interpretation of the….    That award was based on plaintiff’s self-serving testimony and invoice, while defendants presented the testimony and estimates of three nonparty witnesses establishing that plaintiff’s work was not worth more than $8,290.    Under the unique circumstances of this case, i.e., the seven-month lapse between the time that plaintiff completed the project and the time that he drafted and tendered the invoice to defendants, we conclude that the proper remedy is to adopt the highest of the project estimates from defendants’ trial witnesses as the basis for the award of damages … SJ Kula, Inc v Kevin Carrier…, 520, 4th Dept, 6-14-13

 

Excess Insurance Policies Re: Same Risk Cancel Out

In determining that two insurance policies insuring the same risk were both excess insurance policies (canceling each other out), the Fourth Department explained the relevant law as follows:

In resolving disputes between insurers, “we first look to the language of the applicable policies” …, and we note that New York law “recognize[s] the right of each insurer to rely upon the terms of its own contract with its insured”…. “[W]here there are multiple policies covering the same risk, and each generally purports to be excess to the other, the excess coverage clauses are held to cancel out each other and each insurer contributes in proportion to its [policy] limit,” unless to do so would distort the plain meaning of the policies…. By contrast, “if one party’s policy is primary with respect to the other policy, then the party issuing the primary policy must pay up to the limits of its policy before the excess coverage becomes effective”….  Utica Mutual Insurance Company…v Erie Insurance Company, 430, 4th Dept, 6-14-13

 

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Court Is Powerless After Release Signed and Filed

The Fourth Department noted that a court loses jurisdiction over a case after a release has been signed and filed:

Supreme Court erred in granting the motion of … (defendant) to compel plaintiff to comply with the release agreement between plaintiff and defendants. Defendant brought his motion after the related third-party action was settled and an unconditional stipulation of discontinuation as to him with respect to this action was signed by the attorneys for plaintiff and defendant and filed. Although a trial court has the power “to exercise supervisory control over all phases of pending actions an proceedings”…, it lacks jurisdiction to entertain a motion after the action has been “unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance”….  Cambridge Integrated Services Group, Inc v Johnson…, 723, 4th Dept, 6-14-13

 

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Improper to Characterize Trial as “Search for Truth”

The Fourth Department noted that the prosecutor’s characterization of the trial as “a search for the truth” was improper (but did not warrant reversal).  People v Ward, 758, 4th Dept, 6-14-13

 

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Statute of Limitations Tolled Until Defendant Identified by DNA; Police Had “Tacit Consent” to Enter Apartment

The Fourth Department determined the statute of limitations was tolled until defendant was identified through DNA collected in an unrelated conviction.  In addition, the Fourth Department determined the police had “tacit consent” to enter defendant’s apartment:

Here, “[t]he record supports the court’s determination that the identity of defendant as the sexual assailant, and thus his whereabouts, were not ascertainable by diligent efforts” before 2008, when the State DNA Indexing System matched the DNA profile from the semen found on the victim’s night shirt with DNA obtained from defendant in conjunction with an unrelated 2007 conviction … .  * * *

Even assuming, arguendo, that there was a warrantless arrest of defendant in his apartment, we note that it is well settled that “tacit consent by a person with apparent authority . . . [is] sufficient to obviate any possible violation of the Payton rule”…. Here, the People established that the police officers entered the apartment with the consent of defendant’s father…. Although “the police may not have received express permission to enter the premises, [the] gesture [of defendant’s father] of opening the door, leaving it wide open, and then walking  away from it could certainly be interpreted by the police to consist of tacit approval for them to enter”….  People v Sigl, 716, 4th Dept, 6-14-13

 

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