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THE JUDGE’S FAILURE TO READ THE NOTE FROM THE JURY VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL OF DEFENDANT’S MURDER CONVICTION (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined the judge committed a mode of proceedings error by paraphrasing the note from the jury instead of reading it verbatim:

The jury note … stated … “[w]e, the Jury, request: to hear the read-back of [a restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant. She indicates that she had seen him 2 times while she was working at the counter, and multiple times while she was not at the counter but through the security camera play-back. We wish to hear this portion read back. We also request to hear the portion of the cross-examination where she is asked and answers when she identified [a shooter shown in the surveillance video] as the defendant to the police” … . The court did not read the note aloud verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court addressed the note before counsel and the jury by stating, “the readback that you have requested of [the restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant will now be read back for you along with the second portion of that which reads, ‘We also request to hear that portion of the cross-examination where she is asked and answers when she identified [the shooter] as the defendant to the police.’ We’ll read both those portions.” The court failed to read the second and third sentences contained within the jury note. We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . People v Crawford, 2024 NY Slip Op 00528, Fourth Dept 2-2-24

Practice Point: Here the judge’s failure to read the note from the jury verbatim was deemed a mode of proceedings error requiring reversal of a murder conviction.

 

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A FACTUAL NEXUS BETWEEN THE ENDANGERING THE WELFARE OF A CHILD CONVICTION AND THE ALLEGATIONS IN THE NEGLECT PETITION WAS NOT DEMONSTRATED; FAMILY COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT ON THE NEGLECT ALLEGATIONS BASED ON THE CRIMINAL CONVICTION (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the record was not sufficient to support summary judgment on the neglect allegations based upon respondent’s plea to endangering the welfare of a child:

… [A] criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . “It is well settled that [t]he party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . * * *

“[I]t is not enough to merely establish the existence of the criminal conviction; the petitioner must prove a factual nexus between the conviction and the allegations made in the neglect petition” … . Matter of Clarissa F. (Rex O.), 2023 NY Slip Op 06680, Fourth Dept 12-22-23

Practice Point: Here a factual nexus between the endangering the welfare of a child conviction and the allegations of neglect was not demonstrated. Summary judgment on the neglect allegations based solely on the criminal conviction should not have been granted.

 

THE STRICT LIABILITY THEORY APPLIES HERE WHERE PLAINTIFF WAS KICKED BY DEFENDANT’S HORSE; QUESTIONS OF FACT ABOUT WHICH HORSE KICKED PLAINTIFF AND PLAINTIFF’S AWARENESS OF THE RISK PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined questions of fact precluded summary judgment in this action stemming from defendant being kicked by plaintiff’s horse. There were questions of fact about which of plaintiff’s horses kicked the plaintiff and whether plaintiff was aware of the risk of approaching the horse. Plaintiff was familiar with the horses and defendant had called plaintiff because two of the horses were fighting. The court rejected the argument that negligence, as opposed to strict liability, was the applicable theory:

Agriculture and Markets Law § 108 (7) classifies horses as domestic animals, and ” ‘[w]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule’ . . . of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities” … (quoting Bard v Jahnke, 6 NY3d 592, 599 [2006] …) . Contrary to plaintiff’s contention, the exception to that rule set forth in Hastings v Sauve (21 NY3d 122, 125-126 [2013]) does not apply here, inasmuch as the horse did not stray from defendant’s property .. . Contrary to plaintiff’s further contention, he may not maintain a negligence claim against defendant under the reasoning of Hewitt v Palmer Veterinary Clinic, PC (35 NY3d 541 [2020]). In that case, the Court of Appeals held that the Bard rule, set forth above, does not apply to a veterinary clinic … . The Court reasoned that the Bard “line of precedent concerning animal owners [was not] directly implicated” in Hewitt … . By contrast, inasmuch as defendant was the owner of the horse that injured plaintiff, the Bard rule of strict liability applies here. Shuttleworth v Cory, 2023 NY Slip Op 06635, Fourth Dept 12-22-23

Practice Point: Strict liability, not negligence, controls in this horse-kick case. The recent Court of Appeals applications of a negligence theory to injury caused by animals do not apply here.

 

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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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HERE THE WRITTEN LOGGING CONTRACT WAS COMPLETE AND UNAMBIGUOUS; EVIDENCE OF AN ALLEGED ADDITIONAL ORAL AGREEMENT WAS PRECLUDED BY THE PAROL EVIDENCE RULE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the contract at issue was complete and any evidence of an alleged oral agreement was precluded by the parol evidence rule:

 “The parol evidence rule generally operates to preclude evidence of a prior or contemporaneous communication during negotiations of an agreement that contradicts, varies, or explains a written agreement which is clear and unambiguous in its terms and expresses the parties’ entire agreement and intentions” … . …

Defendants met their initial burden of establishing that the timber sale contract is a complete written instrument, and plaintiffs failed to raise a triable issue of fact in opposition … . The contract sets forth the parties, the address of the property, the contract period, the payment terms, and a description of the items sold … . There is no reference to any other document or map … . Inasmuch as the contract constituted a complete, integrated agreement, plaintiffs may not rely on an alleged oral agreement to permit logging on the southernmost section of the property, permit logging on the middle section of the property only upon additional payment, and prohibit logging on the northernmost section of the property, to vary the terms of the contract. Indeed, one would expect the contract to embody any such restrictions on logging, and “[s]uch a collateral agreement cannot be separately enforced” … . Lentner v Upstate Forestry & Dev., LLC, 2023 NY Slip Op 06626, Fourth Dept 12-22-23

Practice Point: Where a written contract is complete and unambiguous on its face, evidence of an additional oral agreement is precluded by the parol evidence rule.

 

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DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).

The Fourth Department, reversing County Court, determined (1) County Court erred when it applied the “clear and convincing” evidentiary standard, as opposed to the “preponderance of the evidence” standard to the SORA risk assessment proceeding, and (2) defendant in this child pornography case was entitled to a downward departure to level one. Defendant, who was 19, had child pornography on his phone but had never committed a sexual offense or any other crime. He was sentenced to probation. He was assessed 90 points (level two) by the People (including 30 points for three or more victims [risk factor 3] and 20 points because the victims were strangers [risk factor 7]).

As the Court of Appeals has stated, “in deciding a child pornography offender’s application for a downward departure, a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … . “The departure process is the best way to avoid potentially ‘anomalous results’ for some child pornography offenders that ‘the authors of the Guidelines may not have intended or foreseen’ ” … .

Here, defendant established by a preponderance of the evidence that there are mitigating factors “not otherwise adequately taken into account by the guidelines” …  The mitigating factors include the fact that defendant was assessed points under risk factors 3 and 7, without which he would have scored as a level one risk. Further, weighing the mitigating factors against any aggravating factors, we conclude that the totality of the circumstances warrants a downward departure to risk level one to avoid an over-assessment of “defendant’s dangerousness and risk of sexual recidivism” … . People v Stagles, 2023 NY Slip Op 06613, Fourth Dept 12-22-23

Practice Point: The correct evidentiary standard for a SORA risk-level assessment is “preponderance of the evidence.”

Practice Point: For offenders convicted of possession of child pornography, who are assessed SORA risk-level points for “three of more victims” and “strangers as victims” based solely on the images, may be entitled to a downward departure.

 

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PLAINTIFFS ALLEGED THE TOWN NEGLIGENTLY MAINTAINED A SEWER MAIN CAUSING SEWAGE TO BACKFLOW INTO PLAINTIFFS’ HOME; AN INTENTIONAL ENTRY IS ONE OF THE ELEMENTS OF TRESPASS; THEREFORE THE TRESPASS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint which alleged the town negligently failed to maintain a sewer main causing sewage to backflow into plaintiffs’ home did not state a cause of action for trespass, which requires an intentional act:

Among other elements, a claim for trespass requires “an intentional entry” … . Intent, in this context, “is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act” … . Here, accepting the allegations in the amended complaint as true … , we conclude that the amended complaint does not state a cause of action for trespass inasmuch as it failed to allege an intentional entry onto plaintiffs’ property … .  Drake v Village of Lima, 2023 NY Slip Op 05833, Fourth Dept 11-17-23

Practice Point: Here the trespass cause of action was based upon the backflow of sewage into plaintiffs’ home allegedly caused by the negligent maintenance of a sewer main. Trespass requires an “Intentional entry” which was not alleged here.

 

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HERE PETITIONERS’ HOUSE WAS DESTROYED BY FIRE AND THE COURT-ORDERED APPRAISAL OF THE AMOUNT OF THE LOSS WAS SET ASIDE THROUGH NO FAULT OF THE PETITIONERS; THE PETITIONERS WERE THEN ENTITLED TO SUE TO SEEK FULL RECOVERY UNDER THE INSURANCE POLICY; THE JUDGE SHOULD NOT HAVE ORDERED FURTHER APPRAISAL PROCEEDINGS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that once the appraisal award was set aside through no fault of the petitioner-insureds further appraisal proceedings should not have been ordered by the judge. Petitioners’ home was destroyed by fire and the insurer valued the loss at $370,000. The petitioners then demanded an appraisal which was ordered by the court. Once the appraisal was set aside through no fault of the petitioners, the petitioners were free to bring a plenary action to sue on the insurance policy:

… [T]he court erred in remitting the appraisal to the umpire and appraisers for further deliberations. It is well settled that “after an appraisal proceeding has terminated in an award and the award has been set aside, without any fault on the part of the insured[s], [they] need not submit to any further appraisement but may sue on the policy” … . Here, it is undisputed that the court set aside the appraisal award due to errors made by the court-appointed umpire—i.e., not due to any fault of petitioners. Consequently, the court could not properly compel petitioners to participate in further appraisal proceedings … . Indeed, we note that petitioners are now entitled to pursue a plenary action in Supreme Court seeking full recovery on their insurance claim under the policy … . Matter of Stanz v New York Cent. Mut. Fire Ins. Co., 2023 NY Slip Op 05832, Fourth Dept 11-17-23

Practice Point: Here there was a court-ordered appraisal to determine the amount of the loss from the destruction of the insureds’ home by fire. The judge set aside the appraisal because of errors made by the umpire. At that point the insureds were entitled to bring a plenary action for full recovery under the fire insurance policy. The judge should not have ordered further appraisal proceedings.

 

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HERE THE MEMORANDUM OF UNDERSTANDING REQUIRED INSTALLATION AND MAINTENANCE OF A GUTTER, DOWNSPOUT AND FENCE FOR $2500; THE MEMORANDUM WAS NOT AN “INSTRUMENT FOR THE PAYMENT OF MONEY ONLY” AND THEREFORE “SUMMARY JUDGMENT IN LIEU OF COMPLAINT” WAS NOT AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined summary judgment in lieu of complaint was not available because the underlying document was not “an instrument for the payment of money only:”

By motion for summary judgment in lieu of complaint (see CPLR 3213), plaintiff moved for judgment in the amount of $2,500.00, plus interest, pursuant to a memorandum of understanding between the parties regarding the installation and maintenance of a gutter, downspout, and fence between their adjoining properties.  * * *

… [T]he court erred in granting the motion inasmuch as the parties’ memorandum of understanding is not “an instrument for the payment of money only” (CPLR 3213 …). Where, as here, an agreement ” ‘requires something in addition to [an] explicit promise to pay a sum of money, CPLR 3213 is unavailable’ ”  Ellicottville Inn Condominium Assn. v Kempisty, 2023 NY Slip Op 05826, Fourth Dept 11-17-23

Practice Point: When a document requires something in addition to the payment of money (here the installation and maintenance of a gutter, downspout and a fence) it is not an “instrument for the payment of money only” and cannot be enforced by summary judgment in lieu of complaint.

 

THE BREACH OF CONTRACT SUIT STEMMED FROM CONSTRUCTION DELAYS; THE LOST PROFITS CLAIM SHOULD HAVE BEEN DISMISSED AS SPECULATIVE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendants’ motion to dismiss the claim for lost profits in this breach of contract action should have been granted. The suit was premised on construction delays which postponed the start-date for the operation of the business. The underlying business was a start-up. Damages for lost profits therefore were not contemplated when the contract was entered. In addition, because no comparable businesses were identified, lost profits would necessarily be speculative:

To recover damages for lost profits, “it must be shown that: (1) the damages were caused by the breach; (2) the alleged loss must be capable of proof with reasonable certainty[;] and (3) the particular damages were within the contemplation of the parties to the contract at the time it was made” … . * * *

… [W]e conclude that “[i]t would be highly speculative and unreasonable to infer an intent to assume the risk of lost profits in what was to be a start-up venture” … . …

The lay assumption by plaintiff that it would have earned the same net profit during the months in which completion of the project was delayed as it did during the same months of the following year is too speculative to support a calculation of damages … . Buffalo Riverworks LLC v Schenne, 2023 NY Slip Op 05823, Fourth Dept 11-17-23

Practice Point: To recover lost profits under a breach of contract theory, the profits must have been within the contemplation of the parties when the contract was entered and there must be some benchmark by which the amount of lost profits can be measured (comparable businesses for example). Here the business was a start-up and the court determined the amount of profits could not have been within the contemplation of the parties when the construction contract was entered.

 

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