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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

 

Plea Colloquy Deficient Re: Depraved Indifference State of Mind

The Fourth Department reversed defendant’s conviction because the plea colloquy cast doubt on whether the defendant had the requisite “depraved indifference” state of mind:

Defendant’s contention that his plea was not knowing and voluntary survives his waiver of the right to appeal … . Preservation of the contention is not required inasmuch as defendant correctly contends that his statements during the plea colloquy cast significant doubt upon his guilt….Defendant stated that he struggled with his wife for control of the knife and that he acted recklessly when he stabbed her, and thus his statements suggest that he did not act with the requisite “depraved indifference state of mind”… . Indeed, it is well established that a “one-on-one . . . knifing . . . can almost never qualify as depraved indifference murder”…. We therefore conclude that County Court erred by accepting the plea without further inquiry … .  People v Robinson, 688, 4th Dept, 6-14-13

 

Naming Different Victim Rendered Superior Court Information Jurisdictionally Defective

The Fourth Department reversed the defendant’s conviction (by guilty plea) because the superior court information (SCI) was jurisdictionally defective.  The SCI and the felony complaint named different victims:

We note that defendant’s contention that the SCI is jurisdictionally defective does not require preservation, and that contention survives defendant’s valid waiver of the right to appeal….“[T]he designation of a[n individual] in the [SCI] different from the [individual] named in the felony complaint renders the crime contained in the information a different crime entirely”…. Thus, defendant was not held for action of a grand jury on the charge in the SCI inasmuch as “it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint”… .   People v Stevenson, 648, 4th Dept, 6-14-13

 

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Statement Not Tainted by Unwarned Statement Made an Hour Before; Failure to Inform Defendant of Post Release Supervision Did Not Require Reversal

The Fourth Department determined County Court properly denied a motion to suppress a statement, finding that the statement was not tainted by an unwarned statement made an hour earlier.  In addition, over a two-justice dissent, the Fourth Department held that the failure to explain the five-year post release supervision (PRS) portion of the sentence when the plea was taken did not require reversal, in part because the error was not preserved:

Although defendant made an inculpatory statement after she was placed in a patrol vehicle and additional inculpatory statements after she was transported to the police station, the court granted suppression of the statement made in the patrol vehicle on the ground that her detention constituted an arrest for which the police officer lacked probable cause. The court refused, however, to suppress the subsequent statements at the police station based on its determination that they were “attenuated from the unlawful arrest.” We agree with the People that the record supports the court’s determination .. . Although there was a period of only one hour between the time of the illegal arrest and the time of defendant’s statements at the police station …, we note that defendant was given Miranda warnings before the stationhouse interview … Moreover, the victim’s identification of defendant as the perpetrator constitutes a significant intervening event … inasmuch as that identification provided the police with probable cause for defendant’s arrest…  Lastly, there was no flagrant misconduct or bad faith on the part of the police officer who took defendant into custody … . * * *

In this case the prosecutor informed the court,“ ‘before the imposition of sentence’ ” (…see generally CPL 220.60 [3]), that he could not recall whether PRS had been discussed at the time of the plea. The prosecutor noted that they “should probably make a record of that . . . so it is clear.” At that point, the court informed defendant that it “intend[ed] to make a five year period of [PRS].” Defendant was then asked if she had a chance to talk about that with her attorney, and defendant answered, “[y]es.” Defendant was also asked if she understood that the PRS was a “part of [her] plea” and that she would be on parole supervision for five years at the end of her prison sentence. Defendant answered, “[c]orrect.”  When asked if she “still wish[ed] to go through with sentencing today,” defendant again answered, “[y]es.” In our view, the record is clear that “defendant could have sought relief from the sentencing court in advance of the sentence’s imposition…”… .  People v Turner, 529, 4th Dept, 6-14-13

 

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