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ALTHOUGH THE PEOPLE’S SANDOVAL APPLICATION WAS DISCUSSED IN CHAMBERS AND THE DEFENDANT WAS NOT PRESENT, THE MAJORITY CONCLUDED THAT THE JUDGE’S SUBSEQUENTLY ASKING, IN OPEN COURT AND IN THE DEFENDANT’S PRESENCE, WHETHER THE DEFENSE WANTED TO BE HEARD ON THE APPLICATION WAS SUFFICIENT; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined that. although a discussion of the People’s Sandoval application was held in chambers when the defendant was not present, there was subsequent open-court proceeding in the defendant’s presence in which the judge offered the defense the opportunity to be heard on the application. The dissent argued the decision on the People’s application was made in chambers and the defendant was not given a meaningly opportunity to participate in a Sandoval hearing:

Defendant contends that he was denied his right to be present at a material stage of the trial when Supreme Court conducted anin-chambers and off-the-record conference in his absence at which there was discussion regarding the People’s previously submitted, written Sandoval application … . We reject that contention. Although defendant was not present at the in-chambers conference, the court held a subsequent proceeding in open court in defendant’s presence, at which the court offered defendant an opportunity to be heard on the People’s application. Defense counsel declined. The court then made, and explained, its ruling on the People’s application. Under those circumstances, we conclude that defendant was afforded a meaningful opportunity to participate at the court’s subsequent de novo inquiry and his absence from the initial conference does not require reversal … . People v Sharp, 2023 NY Slip Op 01602, Fourth Dept 3-23-23

Practice Point: A Sandoval hearing is a material stage of a criminal proceeding at which the defendant must be present. Here the Sandoval application was discussed in chambers when the defendant was not present. Subsequently, in open court, in the defendant’s presence, the judge asked defense whether it wanted to be heard on the application and counsel declined. The majority held the defendant was given a meaningful opportunity to participate. The dissent disagreed.

 

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NON-RESPONDENT FATHER’S APPEAL OF THE PLACEMENT OF HIS CHILDREN WITH THE DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES WAS NOT MOOT; THE CHILDREN HAD BEEN PLACED WITH RELATIVES; PLACEMENT WITH THE DEPARTMENT, AS OPPOSED TO WITH RELATIVES, TRIGGERS THE POSSIBLE FUTURE TERMINATION OF FATHER’S PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department determined non-respondent father’s appeal of the placement of his children with the department of family and children’s services was not moot. The children had been placed with relatives. Placement with the department of family and children’s services, as opposed to with relatives, triggers the possible termination of father’s parental rights:

… [T]he Social Services Law provides that, whenever a child “shall have been in foster care for [15] months of the most recent [22] months . . . the authorized agency having care of the child shall file a petition” to terminate parental rights unless, as relevant here, “the child is being cared for by a relative” … . Thus, we agree with the father that his appeal from the order moving his children from relative placement to foster care is not moot because that change in placement “may, in future proceedings, affect [his] status or parental rights” …  by altering the obligations of petitioner with respect to a future petition to terminate the father’s parental rights…. . Matter of Shdaya B. (Rahdasha B.–Carlton M.), 2023 NY Slip Op 01599, Fourth Dept 3-23-23

Practice Point: Here the non-respondent father’s appeal of the placement of his children with the department of family and children’s services was not moot. The children had been placed with relatives. Placement with the department, as opposed to with relatives, triggers the possible future termination of father’s parental rights.

 

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TWO DISSENTERS ARGUED THE UNPRESERVED ISSUE, WHICH INVOLVED SETTLED LAW, SHOULD NOT HAVE BEEN CONSIDERED ON APPEAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, considered an unpreserved issue on appeal (the date from which prejudgment interest begins to run). The dissenting justices argued the unpreserved issue involved settled law and there was, therefore, no reason to consider it:

The majority assumes that the issue is unpreserved but reaches the merits of claimant’s contention through application of an exception to the preservation rule … . In other words, on this appeal as of right from a final judgment (see CPLR 5701 [a] [1]), the majority is not limiting this Court’s scope of review to those matters brought up for review pursuant to CPLR 5501 (a). We respectfully disagree with the majority to the extent that it elects to address an unpreserved issue of statewide interest inasmuch as it does nothing more than adhere to this Court’s well-settled and decades-long precedent on that particular issue . In short, under the circumstances of this case, we disagree with the majority’s decision to invoke what should be a very rare exception to rules of preservation only just to double down on our long-standing precedent. Indeed, by reaching claimant’s contention challenging that precedent, the majority fails to fully recognize that the policy reasons underlying the preservation rule, and the … rarity of times when we except from it, are “especially acute when the new issue seeks change in a long-established common-law rule,” as is the case here … . Sabine v State of New York, 2023 NY Slip Op 01455, Fourth Dept 3-17-23

Practice Point: The majority considered an unpreserved issue on appeal which involved a well-settled area of the law. Two dissenters argued the case did not justify ignoring the preservation requirement, which should be a rare occurrence reserved to new issues seeking change in the common law.

 

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FLIGHT ALONE DID NOT JUSTIFY THE PURSUIT AND SEARCH OF DEFENDANT IN A STREET STOP (FOURTH DEPT).

The Fourth Department determined that a .22 caliber magazine found in defendant’s pocket in a street stop should have been suppressed. Although the defendant fled, that alone was not enough to justify the search and seizure:

… [T]he police witness testified that he received a report that two black males wearing dark clothing had fled the scene of an armed robbery. Soon after receiving the report, while driving in the vicinity of the incident, the officer observed two individuals in dark clothing, who fled as soon as the officer stopped his vehicle. The officer could not determine the gender or race of the individuals as he approached because they were facing away from him. Assuming, arguendo, that police lawfully approached defendant and the second individual to request information about the robbery … , we conclude that the subsequent pursuit of defendant was unlawful. The officer’s testimony did not establish that he determined that the individuals matched the sex or race of the robbery suspects before he undertook pursuit, and the evidence was therefore insufficient to demonstrate that the officer had ” ‘a reasonable suspicion that defendant ha[d] committed or [was] about to commit a crime’ ” … . Although defendant ran from the officer, “[f]light alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . People v Austin, 2023 NY Slip Op 01442, Fourth Dept 3-17-23

Practice Point: The flight of someone approached by the police on the street, standing alone, is not enough to justify a pursuit, seizure and search of the person.

 

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PLAINTIFF’S ACTION RELIED ON EXTRINSIC EVIDENCE AND WAS NOT AN ACTION FOR THE PAYMENT OF MONEY ONLY WHICH CAN BE BROUGHT BY SUMMONS IN LIEU OF A COMPLAINT PURSUANT TO CPLR 3213 (FOURTH DEPT),

The Fourth Department, reversing Supreme Court, determined plaintiff’s cause of action was not for the payment of money only (CPLR 3213) for which a summons in lieu of  a complaint was an appropriate vehicle:

As proof of the agreement to reduce defendant’s liability under the guaranty and the amount of that reduction, plaintiff relies on evidence extrinsic to the instrument consisting of representations in the affidavit of its chief operating officer, deposit receipt printouts from the online system of plaintiff’s bank, and a guaranty balance chart apparently generated by plaintiff showing the calculation of defendant’s revised liability.

In our view, “[g]oing that far afield from the [financial] instrument itself does not appear to comport with the simple standards” embodied in the statute and related case law … . Indeed, inasmuch as plaintiff’s moving papers demonstrate that outside evidence beyond “simple proof of nonpayment or a similar de minimis deviation from the face of the document[s]” is needed to determine the amount due, we conclude that “[p]laintiff’s action falls far short of satisfying the [CPLR] 3213 threshold requirement” … . Counsel Fin. II LLC v Bortnick, 2023 NY Slip Op 01441, Fourth Dept 3-17-23

Practice Point: Plaintiff relied on extrinsic evidence. The action was not, therefore, for the “payment of money only” within the meaning of CPLR 3213 and was not properly brought by a summons in lieu of complaint.

 

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PLAINTIFFS PROVED THE “ENSUING LOSS” EXCEPTION TO THE “FAULTY WORKMANSHIP” EXCLUSION IN THE HOME INSURANCE POLICY APPLIED; PLUMBING WORK WAS FAULTY, RESULTING IN FLOODING THROUGHOUT THE HOUSE; THE WATER DAMAGE WAS COVERED UNDER THE “ENSUING LOSS” EXCEPTION TO THE “FAULTY WORKMANSHIP” EXCLUSION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the “ensuing loss’ exception to the “faulty workmanship” exclusion applied. The plumbers apparently used the wrong adhesion material for a water-pipe connection. The connection failed and the house was flooded. The “ensuing loss” exception to the “faulty workmanship” exclusion “provide[s] coverage when, as a result of an excluded peril, a covered peril arises and causes damage:”

We conclude that the ensuing loss exception applies to provide coverage for the household water damage because the excluded peril of faulty workmanship resulted in “collateral or subsequent damage” … “to property ‘wholly separate from the defective property itself’ ” … , and plaintiffs’ claim is for “a new loss to property that is of a kind not excluded by the policy,” i.e., sudden and accidental water leakage from within a plumbing system … . In other words, the ensuing loss exception provides coverage here because, as a result of an excluded peril (faulty workmanship), a covered peril arose (water discharge from a plumbing system) and caused other harm (water damage) to separate property (areas throughout the house) … . Ewald v Erie Ins. Co. of N.Y., 2023 NY Slip Op 01439, Fourth Dept 3-17-23

Practice Point: Here water damage throughout the house was covered by the “ensuing loss” exception to the “faulty workmanship” exclusion in the home insurance policy. The plumbers used the wrong material for a water-pipe connection and the house was flooded.

 

DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT).

The Fourth Department determined restitution in this grand larceny case should not include the victim’s (HomeCare”s) labor costs associated with investigating the defendant’s theft or the travel expense of witnesses who testified at trial:

Defendant was charged with grand larceny … after HomeCare conducted an audit of her time sheets and mileage vouchers and determined that she had received more than $14,000 in overpayments during the course of her employment as a registered nurse. …  … County Court … determined that HomeCare and its insurance carrier were entitled to restitution in the amount of $24,469.10 …: $14,207.67 for overpayments made to defendant in wages and mileage reimbursements … , $9,658.02 to HomeCare for labor costs incurred with respect to its employees who investigated defendant’s crime and appeared at her trial; and $603.41 to HomeCare for mileage, meal and hotel expenses incurred by its employees who appeared at trial.

We conclude that the labor costs allegedly incurred by HomeCare for employees who investigated the crime are not “actual out-of-pocket” losses within the meaning of Penal Law § 60.27. … With respect to the travel expenses incurred by HomeCare employees who appeared at defendant’s trial, we note that … section 60.27 does not impose a duty on the defendant to pay for the costs associated therewith inasmuch as such expenses are not directly caused by the defendant’s crime. …

The People rely on People v Denno (56 AD3d 902, 903-904 …), where the Third Department determined that the sentencing court did not improvidently exercise its discretion when it ordered that the defendant pay reparations to the victim’s mother to cover the expenses of traveling by airplane from Florida to New York to speak at sentencing, and to cover the lost wages caused by missing four days of work. … [W]e do not follow Denno because we do not read Penal Law § 60.27 as requiring a criminal defendant to pay for expenses incurred by the victim to testify at trial or investigatory costs incurred by the victim. People v Case, 2023 NY Slip Op 01438, Fourth Dept 3-17-23

Practice Point: Here the defendant was convicted of grand larceny for overcharging her employer. The restitution should not have included the employer’s labor costs associated with investigating the crime or the travel expenses for witnesses who testified at trial. Re: the costs incurred by witnesses who testified at trial, the Fourth Department refused to follow the Third Department.

 

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THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s second degree assault conviction, determined the physical-injury element of the offense was not supported by legally sufficient evidence:

… [T]he evidence of the injury inflicted here, viewed objectively, established only that the correction officer sustained slight scraping and scratching, perhaps some bruising, minor swelling in the wrist, a small laceration, and abrasions or redness, without any bleeding … . Indeed, although medical staff at the correctional facility purportedly noted bruising on the correction officer’s forearm, no bruising is apparent in the photographs taken shortly after the incident, and the photographs otherwise depict only minimal redness on the correction officer’s arm and hand, a minuscule nick on the knuckle of his index finger, and a slight scratch along his arm … . People v Dowdell, 2023 NY Slip Op 01432, Fourth Dept 3-17-23

Practice Point: Here the evidence of “physical injury” was deemed legally insufficient to support the assault second conviction. The decision analyzes all of the relevant aspects of “physical injury” including pain.

 

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IF A PREMATURE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WAS NOT FILED IN GOOD FAITH, THE STATEMENT OF READINESS FOR TRIAL IS ILLUSORY; MATTER REMITTED FOR A DETERMINATION WHETHER THE CERTIFICATE WAS FILED IN GOOD FAITH; THE JUDGE CONSIDERED ONLY WHETHER DEFENDANT WAS PREJUDICED BY THE POST-CERTIFICATE PRODUCTION OF DISCOVERY (FOURTH DEPT). ​

The Fourth Department, remitting the matter, found the judge applied the wrong criteria for determining whether the People’s premature filling of the certificate of compliance with discovery obligations (CPL 245.50) rendered the ready-for-trial announcement illusory:

… [T]he criminal action was commenced on June 9, 2021 (see CPL 1.20 [17]). The People filed their certificate of compliance and statement of readiness on August 6, 2021. On February 12, 2022, defendant moved to dismiss the indictment on speedy trial grounds, arguing that the People’s failure to provide all of the discovery required by CPL 245.20 rendered the certificate of compliance improper and the statement of readiness illusory. Defendant argued that the People should be charged with the entire eight month period and that the indictment should be dismissed (see CPL 30.30 [1] [a]). The court denied defendant’s motion, concluding that the People’s certificate of compliance was proper because defendant had not been prejudiced by the People’s belated disclosure of certain required discovery and that the statement of readiness therefore was not illusory.

… [T]he court’s use of a prejudice-only standard for evaluating the propriety of the certificate of compliance was error because the clear and unambiguous terms of CPL 245.50 establish that a certificate of compliance is proper where its filing is “in good faith and reasonable under the circumstances” … . On a CPL 30.30 motion, the question is not whether defendant was prejudiced by an improper certificate of compliance … . … In light of the court’s failure to consider whether the People’s certificate of compliance was filed in “good faith and reasonable under the circumstances” despite the belated discovery, we hold the case, reserve decision, and remit the matter to Supreme Court to determine whether the People’s certificate of compliance was proper under the terms of CPL 245.50 and thus whether the statement of readiness was valid. People v Gaskin, 2023 NY Slip Op 01415, Fourth Dept 3-17-23

Practice Point: If the People file a certificate of compliance with discovery obligations before discovery is complete the readiness-for-trial statement may be rendered illusory. The judge must determine whether the certificate was filed in good faith, not whether defendant was prejudiced by the post-certificate discovery.

 

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PLAINTIFF SUED THE TOWN ALLEGING BREACH OF CONTRACT; TOWN LAW 65 (3) REQUIRED PLAINTIFF TO FILE A NOTICE OF CLAIM WITHIN SIX MONTHS (WHICH PLAINTIFF FAILED TO DO) AND MAKES NO PROVISION FOR FILING A LATE NOTICE; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff in this breach of contract action against the town did not comply with the notice-of-claim requirement in the Town Law and the action therefore should have dismissed. Unlike other notice statutes, Town Law 65 (3) does not allow a late notice of claim:

Plaintiff commenced this action to recover payment for highway repair work it performed for defendant, asserting causes of action for breach of contract, unjust enrichment, and quantum meruit. Defendant moved to dismiss the complaint on the ground, inter alia, that plaintiff failed to comply with the notice of claim provision under Town Law § 65 (3) and plaintiff cross-moved for leave to file a late notice of claim. Supreme Court denied the motion and granted the cross motion, concluding that, although plaintiff failed to comply with section 65 (3), it should be permitted to file a late notice of claim inasmuch as defendant had actual notice of the essential facts of the claim and did not demonstrate any prejudice that would arise from the late filing of the claim. Defendant appeals.

We agree with defendant that the court erred in denying the motion and in granting the cross motion. Town Law § 65 (3) requires that a written verified claim be filed with the town clerk “within six months after the cause of action shall have accrued.” “[I]n contrast to other notice statutes, Town Law § 65 (3) contains no provision allowing the court to excuse noncompliance with its requirements” … . Accadia Site Contr., Inc. v Town of Pendleton, 2023 NY Slip Op 01386, Fourth Dept 3-17-23

Practice Point: Unlike other notice statutes, Town Law 65 (3) does not make any provision for filing a notice after the six-month deadline.

 

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