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THE SIX-MONTH PERIOD FOR REFILING A COMPLAINT AFTER DISMISSAL (CPLR 205(A)) BEGAN TO RUN ONLY WHEN THE APPEAL OF THE DENIAL OF THE MOTION TO VACATE THE DISMISSAL WAS EXHAUSTED (FOURTH DEPT).

​The Fourth Department, reversing Supreme Court, determined the six-month period for filing a new complaint after dismissal started to run when the appeal of the denial of the motion to vacate the dismissal was exhausted:

Where a plaintiff has sought to appeal as of right from the denial of a motion to vacate the dismissal of its action, the action terminates for purposes of CPLR 205 (a) when the appeal “is truly ‘exhausted,’ either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned … . “Here, the dismissal of the 2012 action “did not constitute a final termination of that action within the meaning of CPLR 205 (a) because plaintiff’s predecessor in interest was statutorily authorized to file a motion to vacate [the dismissal] and to appeal from the denial of that motion” … . The 2012 action thus terminated for purposes of CPLR 205 (a) on November 30, 2018, when this Court dismissed the appeal and plaintiff’s predecessor in interest thereby exhausted its right of appeal … . Inasmuch as the instant action was commenced within six months of November 30, 2018, we conclude that it was timely commenced. MTGLQ Invs., LP v Zaveri, 2022 NY Slip Op 06335, Fourth Dept 11-10-22

Practice Point: The six-month period for refiling a complaint after dismissal (CPLR 208(a)) begins to run only after the appeal from the denial of a motion to vacate the dismissal is exhausted.

 

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THE NOTE REQUIRED THE APPLICATION OF FLORIDA SUBSTANTIVE AND PROCEDURAL LAW TO THE “TERMS OF THE DOCUMENTS” BUT SPECIFICALLY CONTEMPLATED A SUIT IN EITHER NEW YORK OR FLORIDA; THEREFORE SUPREME COURT SHOULD NOT HAVE INTERPRETED THE CHOICE OF LAW PROVISIONS TO RULE OUT A NEW YORK LAWSUIT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that the terms of the note which required the application of Florida law did not preclude bringing the action in New York. The language in the note indicated the parties intended suit to be brought either in New York or Florida:

[Supreme Court] stated in its decision that, “having elected to have the ‘procedur[al] laws of the State of Florida’ apply exclusively in this action, the [p]laintiff could not rely on any of the provisions of New York’s Civil Practice Law and Rules in prosecuting this action.” The court relied on CPLR 101, which the court quoted in its decision as providing, in pertinent part, that ” ‘[t]he civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute’ ” … . The court … concluded that, due to the perceived conflict between the contractual choice-of-law provisions and CPLR 101, it could not grant the [plaintiff’s summary judgment] motion. * * *

“Contractual ‘[c]hoice of law provisions typically apply to only substantive issues’ ” … , although parties can agree otherwise. Here, the note provides that “[t]he terms” of the documents are to be governed by the substantive and procedural rules of Florida, but that does not establish that the rules of Florida were intended to govern the procedures of the New York State court system, which would effectively preclude any action on the note in New York. Indeed, the note itself provides that venue for any action related to the note may be in either “Onondaga County, New York or Broward County, Florida.” Thus, the parties anticipated that New York courts could and would be able to handle a judicial action related to the note … . Bankers Healthcare Group, LLC v Pasumbal, 2022 NY Slip Op 06334, Fourth Dept 11-10-22

Practice Point: The choice of law provisions in the note required the application of Florida substantive and procedural law to the “terms of the documents” and also stated suit could be brought in either New York or Florida. Supreme Court should not have interpreted the choice of law provisions to rule out a New York lawsuit.

 

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THE TOWN CONTRACTED FOR THE CONSTRUCTION PROJECT ON WHICH PLAINTIFF WAS INJURED; DEFENDANT CONTRACTED WITH THE TOWN TO HANDLE BIDS FOR THE PROJECT; DEFENDANT WAS NOT AN AGENT FOR THE TOWN AND THE LABOR LAW 240(1), 241(6), 200 AND NEGLIGENCE ACTIONS AGAINST DEFENDANT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this Labor Law 240(1), 241(6), 200 and negligence action, determined the defendant was not an agent for the town which had contracted for the work plaintiff was doing when injured. Defendant had contracted with the town to prepare a bid package, solicit bids, obtain grant money and review bids for the construction project:

“An agency relationship for the purposes of section 240 (1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job” … . “Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law” … . Pursuant to the express terms of the contract between the Town and the nonparty contractor—i.e., plaintiff’s employer—as well as the terms of the contract between the Town and defendant, defendant had no control over the means or methods of the performance of the work by the contractor, and it also had no control over safety precautions for the workers at the construction site … .

For those same reasons, it was error to deny defendant’s motion with respect to the Labor Law § 241 (6) cause of action … . Defendant also established that it did not actually direct or control the work that brought about plaintiff’s injuries, and plaintiff raised no issue of fact with respect thereto. Therefore, it was error to deny defendant’s motion with respect to the Labor Law § 200 and common-law negligence causes of action … . Smith v MDA Consulting Engrs., PLLC, 2022 NY Slip Op 06389, Fourth Dept 11-10-22

Practice Point: In order for a party to be liable as an agent for the owner in a Labor Law action, the party must have some control over the work the injured plaintiff was engaged in. Here the defendant was in charge of bids for the town’s construction project and exercised no control over the work. The Labor Law causes of action against defendant should have been dismissed.

 

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THE DEFENDANT CONSTRUCTION COMPANY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE SIGN ON THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL AND DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE FOR THE PRESENCE OF THE SIGN ON THE SIDEWALK (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant construction company (Pinto) did not demonstrate that it did not have constructive notice of the condition alleged to have caused plaintiff’s slip and fall (a construction sign on the sidewalk) and that it did not create the condition:

Pinto failed to meet its initial burden on its cross motion with respect to constructive notice because its submissions “failed to establish as a matter of law that the [dangerous] condition [was] not visible and apparent or that [it] had not existed for a sufficient length of time before the accident to permit [Pinto] or [its] employees to discover and remedy [it]” … . Testimony from Pinto’s superintendent that Pinto had a general policy of taking down and storing its construction signs at the end of each workday was insufficient to establish that Pinto lacked constructive notice of the dangerous condition because Pinto failed to establish that it had complied with that general policy prior to the occurrence of the incident in question … .

Pinto also failed to establish as a matter of law that it did not create the allegedly dangerous condition because its own submissions raise triable issues of fact with respect to that issue … . There is no dispute that Pinto’s submissions established that the sign plaintiff tripped over belonged to Pinto. Although the deposition testimony from Pinto’s superintendent established that, at the time of the accident, Pinto had not been present at the work site for about a week, he did not know how the sign ended up on the ground or how long it had been there, and he only speculated that the sign may have been used by another contractor who failed to properly put it away.  Brioso v City of Buffalo, 2022 NY Slip Op 06380, Fourth Dept 11-10-22

Practice Point: Defendant construction company did not demonstrate it did not have constructive knowledge of and was not responsible for the presence of the construction sign on the sidewalk over which plaintiff allegedly tripped and fell.

 

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DIRECT APPEAL, AS OPPOSED TO AN ARTICLE 78, WAS APPROPRIATE IN THIS CONTEMPT PROCEEDING; MOTHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO ARGUE AGAINST THE CONTEMPT ADJUDICATIONS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined direct appeal of the contempt adjudications in this custody matter, as opposed to an Article 78 action, was appropriate under the circumstances. The contempt adjudications were vacated because mother was not given the opportunity to argue she should not be held in contempt:

… [T]he mother’s challenge to the summary contempt adjudications is properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record (see Judiciary Law §§ 752, 755 …), an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review … .

With respect to the merits, “[b]ecause contempt is a drastic remedy, . . . strict adherence to procedural requirements is mandated” … . Here, we conclude that the court committed reversible error by failing to afford the mother the requisite “opportunity, after being ‘advised that [she] was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced’ ” … . S.P. v M.P., 2022 NY Slip Op 06377, Fourth Dept 11-10-22

Practice Point: A contempt adjudication based upon actions in the court’s presence are usually properly contested in an Article 78 proceeding. Under the circumstances here, direct appeal was appropriate. The contempt adjudications were vacated because mother (in this custody proceeding) was not given the opportunity to contest them.

 

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THE INFORMATION SOUGHT BY DEFENDANT IN THIS SUIT BY THE INSURER TO DISCLAIM COVERAGE WAS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AS MATERIAL PREPARED IN ANTICIPATION OF LITIGATION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the information sought by defendant (Charleus) in this insurance coverage dispute was privileged as material prepared in anticipation of litigation. Plaintiff insurance company brought this suit against the defendant, who was injured in a car accident involving its insured, to disclaim coverage because of the insured’s lack of cooperation:

“[A]n insurance company’s claim file is conditionally exempt from disclosure as material prepared in anticipation of litigation” ( … see CPLR 3101 [d] [2]). Nevertheless, material prepared in anticipation of litigation may be subject to disclosure upon “a party’s showing that he or she is in substantial need of the material and is unable to obtain the substantial equivalent of the material by other means without undue hardship” … . Here, we conclude that the materials sought by Charleus and ordered by the court to be disclosed following its in camera review constitute material prepared in anticipation of litigation … and were prepared at a time after plaintiff had already determined to reject and defend against the claim made by Charleus … .

Because the materials sought by Charleus and ordered to be disclosed by the court’s order were prepared in anticipation of litigation and because Charleus has not made a showing justifying disclosure … , we modify the order by denying the motion in its entirety and granting the cross motion. Merchants Preferred Ins. Co. v Campbell, 2022 NY Slip Op 06370, Fourth Dept 11-10-22

Practice Point: In this suit by an insurer to disclaim coverage of defendant’s injuries stemming from an accident with the insured, the information sought by defendant was prepared in anticipation of litigation and was therefore protected by attorney-client privilege.

 

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A WITNESS WHO WOULD HAVE TESTIFIED THE COMPLAINANT IN THIS SEXUAL ABUSE PROSECUTION HAD OFFERED TO GIVE FALSE TESTIMONY ABOUT THE WITNESS’S BOYFRIEND SHOULD HAVE BEEN ALLOWED TO TESTIFY (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction in this sexual abuse prosecution, determined a witness who would have testified about the complainant’s offer to give false testimony about the witness’s boyfriend should have been allowed to testify:

County Court erred in precluding him from calling a witness who would testify that the complainant offered to make a false allegation of abuse against the witness’s boyfriend. “Questioning concerning prior false allegations of rape or sexual abuse is not always precluded . . . , and the determination whether to allow such questioning rests within the discretion of the trial court” … . Evidence of a complainant’s prior false allegations of rape or sexual abuse is admissible to impeach the complainant’s credibility where a “defendant establishe[s] that the [prior] allegation may have been false[, and] . . . that the particulars of the complaints, the circumstances or manner of the alleged assaults, or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the complainant” … . Here, based on the proffer made at trial, defendant’s proposed witness would have testified that the complainant offered to knowingly make a false allegation against the witness’s boyfriend and that this conduct took place around the same time as the first incident alleged against defendant and just months before the second such incident. Further, per defense counsel’s proffer, the nature and circumstances of the allegations against defendant and the offered allegation against the witness’s boyfriend were sufficiently similar to “suggest a pattern casting substantial doubt on the validity of the charges” … . People v Andrews, 2022 NY Slip Op 06366, Fourth Dept 11-10-22

Practice Point: A witness who would have testified the complainant in this sexual abuse prosecution offered to give false testimony against her boyfriend should have been allowed to testify. Evidence of a complainant’s prior false allegations of sexual abuse can be admissible to impeach the complainant under certain circumstances (present here).

 

UNAUTHORIZED USE OF A VEHICLE THIRD DEGRESS IS A LESSER INCLUSORY COUNT OF GRAND LARCENY FOURTH DEGREE (FOURTH DEPT).

The Fourth Department determined the unauthorized use of a vehicle third degree count should nave been dismissed as a lesser inclusory count of grand larceny fourth degree:

… [T]he part of the judgment convicting defendant of unauthorized use of a vehicle in the third degree must be reversed and count two of the indictment dismissed because that offense is a lesser inclusory concurrent count of count one, grand larceny in the fourth degree … . People v Mitchell, 2022 NY Slip Op 06359, Fourth Dept 11-10-22

Practice Point: Unauthorized use of a vehicle third degree is a lesser inclusory count of grand larceny fourth degree.

 

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DEFENSE COUNSEL STATED DEFENDANT’S PRO SE MOTION TO WITHDRAW THE PLEA WAS WITHOUT MERIT; DEFENSE COUNSEL AND THE COURT INCORRECTLY TOLD THE DEFENDANT THE ISSUES RAISED IN THE MOTION TO WITHDRAW HAD BEEN DECIDED IN A PRIOR APPEAL: DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, remitting the matter to determined defendant’s pro se motion to withdraw his plea, determined defendant did not receive effective assistance of counsel. Counsel stated the pro se motion did not have merit, taking a position adverse to the client’s position. In addition, defense counsel and the court incorrectly told defendant that the issues raised in defendant’s motion to withdraw the plea had been determined in a prior appeal:

When defense counsel takes a position adverse to his or her client, “a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion” … .

Here, by stating that there were no grounds for defendant’s pro se motion, defense counsel essentially said that it lacked merit, which constitutes taking a position adverse to defendant … .

It appears from the record that defense counsel advised defendant that the issues raised by defendant in his pro se motion to withdraw his plea had already been decided against him in the prior appeal. The court agreed with defense counsel’s interpretation of our ruling. Both defense counsel and the court were incorrect. People v Hemingway, 2022 NY Slip Op 06356, Fourth Dept 11-10-22

Practice Point: If defense counsel takes a position adverse to defendant’s position, the defendant has not received effective assistance and is entitled to new counsel. Here defense counsel stated defendant’s pro se motion to withdraw the plea was without merit. The matter was remitted for assignment of new counsel and consideration of defendant’s motion.

 

THE PEOPLE ARE NOT REQUIRED TO HAVE THEIR WITNESSES READY FOR TRIAL IN ORDER FOR A STATEMENT OF READINESS TO BE VALID; THE MOTION TO DISMISS THE INDICTMENT ON SPEEDY-TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED; THE STATEMENTS OF READINESS WERE NOT ILLUSORY; THERE WAS A DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s speedy-trial dismissal of the indictment, over a dissent, determined County Court should not have deemed several of the prosecutor’s statements of readiness illusory because the witnesses were not ready for trial at the time the statements were made:

Prior to August 4, 2021, no adjournment was caused by the People’s failure to have their witnesses ready for trial. Rather, the matter was adjourned on those occasions due to other, older matters proceeding to trial before this case was reached. “The People are not required to contact their witnesses on every adjourned date . . . , nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid” … . To the contrary, ” ‘[p]ostreadiness delay may be charge[able] to the People when the delay is attributable to their inaction and directly implicates their ability to proceed to trial’ ” … . Here, although the time after the People withdrew their statement of readiness was properly charged to them, there was no prior delay attributable to the People’s inaction. Consequently, the prior statements of readiness were not illusory … . People v Hill, 2022 NY Slip Op 05626, Fourth Dept 10-7-22

Practice Point: Here the prosecutor acknowledged the trial witnesses had not be contacted at the time statements of readiness were made because other trials were scheduled before the trial in this case. No delay was attributable to the People’s inaction. Therefore the statements of readiness should not have been deemed illusory and the indictment should not have been dismissed on speedy-trial grounds.

 

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