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THE FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO SAID HE WOULD BE INCLINED TO BELIEVE THE TESTIMONY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the for cause challenge to a juror who said he would tend to believe the testimony of police officers should have been granted, despite the assurances elicited by the judge:

… [T]he statement of the prospective juror during voir dire with respect to the credibility of the testimony of police officers or bias in favor of the police cast serious doubt on his ability to render an impartial verdict, and the prospective juror failed to provide “unequivocal assurance that [he could] set aside any bias and render an impartial verdict based on the evidence” … . Specifically, after the prospective juror stated that he was a former correction officer and had “a lot of friends and family members” in law enforcement, he agreed that he would “be inclined to give more credibility to an officer than [he] would a lay person,” explained that, based on his experiences, he found police to be “honest people,” and specifically described one of the officers who would later testify for the People as “an honest person.” Although the court inquired further of the prospective juror, we conclude that the prospective juror’s answers to the questions asked by the court were “insufficient to constitute . . . an unequivocal declaration” that he could set aside any bias and render an impartial verdict … . People v Harrison, 2021 NY Slip Op 07445, Fourth Dept 12-23-21

 

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THE JUDGE’S THREAT TO IMPOSE A MUCH HARSHER SENTENCE SHOULD THE DEFENDANT BE CONVICTED AT TRIAL AMOUNTED TO COERCION RENDERING THE PLEA INVOLUNTARY; ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE PLEA WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea in the interest of justice, determined the judge’s threat to impose a much harsher sentence if the defendant were to be convicted at trial amounted to coercion:

During a court appearance at which County Court extended a plea offer that called for an aggregate sentence of 15 years to life imprisonment, the court informed defendant that “my policy is if a defendant gets convicted at trial, that means that individual has not accepted responsibility for the conduct that they’ve been convicted of, and . . . [i]n all likelihood the sentence [after trial] would not even be close to the 20 years [to life sought by the People], it would be much more — — many more years and you are looking at a potential [of] 100 years to life.” The court issued a virtually identical admonition at the next appearance, and defendant subsequently accepted the court’s offer of 15 years to life imprisonment.

… [T]he court’s statements during plea negotiations did “not amount to a description of the range of the potential sentences but, rather, they constitute[d] impermissible coercion, ‘rendering the plea involuntary and requiring its vacatur’ ” … . People v Goodwin, 2021 NY Slip Op 07418, Fourth Dept 12-23-21

 

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PLAINTIFF SOUGHT ARREARAGES FOR A PORTION OF DEFENDANT’S PENSION UNDER THE TERMS OF THE STIPULATION OF SETTLEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; THE ACTION WAS THEREFORE IN THE NATURE OF A BREACH OF CONTRACT AND WAS LIMITED BY THE SIX-YEAR STATUTE OF LIMITATIONS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the calculation of the arrearages for plaintiff’s potion of defendant’s pension was restricted by the six-year statute of limitations for contact actions. The stipulation of settlement, which is the basis for plaintiff’s right to a portion of the pension, was incorporated, but not merged, into the judgment of divorce such that a breach of the stipulation is a breach of contract:

It is well settled that “[a] stipulation of settlement that is incorporated, but not merged, into the judgment of divorce is a contract subject to the principles of contract construction and interpretation” … , and an action seeking money damages for violation of a separation agreement is subject to the six-year statute of limitations for breach of contract actions … . Contrary to the court’s determination, it is irrelevant that plaintiff sought the arrearages by way of motion rather than by commencement of a plenary action. Although motions to enforce the terms of a stipulation are not subject to the statute of limitations … , in this case plaintiff was seeking arrearages, or money damages, for the amounts that she did not receive because the QDRO was never received by Niagara Mohawk. When a party is seeking arrearages or a money judgment, the statute of limitations applies whether a party commences a plenary action … or, as here, simply moves for that relief … .

Thus, we conclude that plaintiff’s claim is timely only to the extent that she seeks her share of pension payments made within six years prior to her motion filed on July 29, 2019. Mussmacher v Mussmacher, 2021 NY Slip Op 07413, Fourth Dept 12-23-21

 

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THE REMARKS MADE BY THE POLICE DURING THE INTERROGATION OF DEFENDANT SERVED TO NEGATE THE MIRANDA WARNINGS; INTERROGATION CONTINUED AFTER DEFENDANT ASSERTED HIS RIGHT TO COUNSEL; THE ERRORS WERE DEEMED HARMLESS BECAUSE DEFENDANT WOULD HAVE BEEN CONVICTED EVEN IF THE STATEMENTS HAD BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department determined questioning by the police effectively negated the Miranda warnings and questioning continued after defendant invoked his right to counsel. The errors were deemed harmless because the defendant would have been convicted even if the statements had been suppressed:

“Properly administered Miranda rights can be rendered inadequate and ineffective when they are contradicted by statements suggesting that there is a price for asserting the rights to remain silent or to counsel, such as foregoing ‘a valuable opportunity to speak with an assistant district attorney, to have [the] case[ ] investigated or to assert alibi defenses’ ” … . The police officer’s statement here improperly implied to defendant that the interrogation would be his “only opportunity to speak” … , and his advice that providing an explanation would benefit defendant effectively “implied that . . . defendant[‘s] words would be used to help [him], thus undoing the heart of the warning that anything [he] said could and would be used against [him]” … . * * *

… [A]bout 20 minutes into the interrogation, defendant expressly stated that he did not “want to talk about more of this[, i.e., the shooting]. That’s it.” … [D]efendant thereby unequivocally invoked his right to remain silent …  inasmuch as “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . Defendant’s responses to the police officers when they resumed the interrogation did not negate his prior unequivocal invocation of his right to remain silent because the police officers failed to reread the Miranda warnings to defendant before resuming the interrogation and therefore failed to scrupulously honor his right to remain silent … . People v Marrero, 2021 NY Slip Op 06510, Fourth Dept 11-19-21

 

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IN THIS CHILD VICTIMS ACT ACTION ALLEGING SEXUAL ABUSE BY THE DEFAULTING DEFENDANT WHO ALLEGEDLY WAS AN EMPLOYEE OF THE NON-DEFAULTING DEFENDANT, IT WAS AN IMPROVIDENT EXERCISE OF DISCRETION TO DELAY THE DAMAGES ASPECT OF THE SUIT AGAINST THE DEFAULTING DEFENDANT UNTIL THE TRIAL OR DISPOSITION OF THE SUIT AGAINST THE NON-DEFAULTING DEFENDANT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined delaying the damages aspect of the action against a defaulting defendant until the trial or disposition of the action against a non-defaulting defendant was improper under the facts. The Fourth Department noted that it can substitute its discretion for the lower court’s, even where there has been no abuse of discretion by the lower court. The defaulting defendant was an employee of the non-defaulting defendant, YMCA Buffalo Niagara, when he allegedly sexually abused plaintiff. The lawsuit was brought pursuant to the Child Victims Act:

… [Although] a court may, under appropriate circumstances, defer entry of judgment and a determination of damages against a defaulting defendant until resolution of a separately-commenced companion action against non-defaulting defendants, we … agree with plaintiff’s … contention that the court’s decision to do so here constitutes an improvident exercise of its discretion … . We therefore substitute our own discretion “even in the absence of abuse [of discretion]” … .

… [W]e agree with plaintiff that “further delay undermines the purpose of the Child Victims Act, which is to ‘finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties’ ” … . Given the schedule of the separate action and the accompanying “uncertainty as to when plaintiff’s claims may be resolved against [YMCA Buffalo Niagara], additional delay may hinder [plaintiff’s] efforts to prove damages against defendant and secure a final judgment, particularly considering defendant’s age and the prospect that defendant’s assets may be dissipated in the interim” … . By contrast, we note that the court did not identify any prejudice to YMCA Buffalo Niagara … . “Although judicial economy, which is an important consideration under CPLR 3215 (d) . . . , may favor a single damages proceeding involving both the defaulting and non-defaulting defendants,” we conclude here that “such consideration does not outweigh the significant prejudice that may inure to plaintiff … . LG 46 DOE v Jackson, 2021 NY Slip Op 06507, Fourth Dept 11-19-21

 

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IN THIS POST-DIVORCE ACTION, THE PROCEEDS OF THE SALE OF THE PARTIES’ REAL PROPERTY SHOULD NOT HAVE BEEN DISTRIBUTED WITHOUT A FULL EVIDENTIARY HEARING (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the court should have conducted a hearing before distributing the proceeds of the sale of the parties’ farm in this post-divorce action:

… [T]he court erred in deciding the value of plaintiff’s credits without a full evidentiary hearing permitting the parties to offer proof of valuation … . Plaintiff offered no direct proof of the value of the relevant assets, and defendant was not afforded an opportunity to cross-examine the court-appointed appraiser or review the appraisals … . The court’s decision also failed to articulate the factors it considered or the reasons for its determination to partially grant certain credits to plaintiff and deny others … . … [W]e remit the matter to Supreme Court for a hearing and appropriate findings of fact and conclusions of law with respect to the parties’ entitlement to credits. Edwards v Edwards, 2021 NY Slip Op 06504, Fourth Dept 11-19-21

 

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THE FACTS THAT THE PARKED CAR IN WHICH DEFENDANT WAS SITTING WITH TWO OTHERS WAS IN A HIGH CRIME AREA AND WAS NOT RUNNING DID NOT PROVIDE THE POLICE WITH AN ARTICULABLE, CREDIBLE REASON TO APPROACH THE CAR; THE EVIDENCE SUBSEQUENTLY SEIZED AND THE STATEMENTS SUBSEQUENTLY MADE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the police did not have an articulable. credible reason for approaching the parked car defendant was sitting in. Therefore the evidence subsequently seized and the statements subsequently made should have been suppressed:

Where … “police officers approach a vehicle that is already parked and stationary, the only level of suspicion necessary to justify that approach is an articulable, credible reason for doing so, not necessarily indicative of criminality” … . The approach, however, “must be predicated on more than a hunch, whim, caprice or idle curiosity” … . Here, the officer testified at the suppression hearing that he and his partner approached the vehicle because the apartment complex at which it was parked was in a high crime area and because the vehicle was not running and had three occupants. The hearing record is devoid, however, of evidence that the officer was “aware of or observed conduct which provided a particularized reason to request information” from the occupants of the vehicle … . People v King, 2021 NY Slip Op 06499, Fourth Dept 11-19-21

 

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THE CO-GUARDIAN SHOULD NOT HAVE BEEN REMOVED WITHOUT A HEARING; ALTHOUGH THE CO-GUARDIAN HAS A FELONY CONVICTION, SHE OBTAINED A CERTIFICATE OF RELIEF FROM DISABILITIES; THEREFORE, ALTHOUGH SURROGATE’S COURT CAN REMOVE THE CO-GUARDIAN IN THE EXERCISE OF DISCRETION, REMOVAL IS NOT AUTOMATIC (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the co-guardians’ petition to remove co-guardian respondent Suzette Bonerb should not have been granted without a hearing. Petitioner and Suzette Bonerb were previously appointed co-guardians of their adult child, Whitney Bonerb, and co-trustees of the Whitney Bonerb Credit Shelter Supplemental Needs Trust. Although respondent Suzette had been convicted of a felony, which would allow removal by Surrogate’s Court sua sponte, Suzette had been granted a certificate of relief from disabilities. Therefore a hearing was required:

… [T]he certificate does not prevent the Surrogate “from revoking [respondent’s appointments] in the exercise of its discretion (see Correction Law § 701 [3]); it merely preclude[s] the automatic revocation of” those appointments … . * * *

… [R]espondent conceded that she had been convicted of a felony, but established that she disclosed that fact in the applications for appointments and that she later obtained a certificate of relief from disabilities with respect to that felony (see Correction Law § 701). … [S]he contended that she had been advised by counsel that she was eligible to be appointed a fiduciary at the time when she signed the statement to that effect. Consequently, the Surrogate must make a credibility determination concerning those issues, and then exercise her discretion concerning whether respondent should be removed from her appointments … . Matter of Bonerb, 2021 NY Slip Op 06487, Fourth Dept 11-19-21

 

QUESTIONS OF FACT ABOUT DEFENDANT’S KNOWLEDGE THE ICE AND SNOW WHERE PLAINTIFF SLIPPED AND FELL WAS A RECURRING CONDITION (CONSTRUCTIVE NOTICE), AS WELL AS DEFENDANT’S ROLE IN CREATING THE CONDITION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there were questions of fact about defendant’s (Ryco’s) “constructive notice” and “creation” of the snow and ice condition in the are where plaintiff slipped and fell:

With respect to constructive notice, it is well settled that a “defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific recurrence of the condition” … . Here, the Ryco defendants’ own submissions raise a triable issue of fact whether they had actual knowledge of a recurring dangerous condition in the parking lot in front of the entrance where plaintiff fell, thereby placing them on constructive notice … .

… [T]he Ryco defendants’ own submissions “failed to eliminate the existence of a triable issue of fact as to whether the ice on which . . . plaintiff allegedly slipped and fell was formed when snow piles created by the [Ryco] defendant[s’] snow removal efforts melted and refroze” … . Britt v Northern Dev. II, LLC, 2021 NY Slip Op 06486, Fourth Dept 11-19-21

 

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PLAINTIFF’S TITLE IX AND 42 USC 1983 CAUSES OF ACTION, BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN 1972 AND 1973, ARE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s Title IX and 42 USC 183 causes action, based upon allegations plaintiff was sexually abused by a teacher in 1972 – 1973, were time barred:

“The federal civil rights statutes do not provide for a specific statute of limitations, establish rules regarding the tolling of the limitations period, or prescribe the effect of tolling” … . Thus, “courts entertaining claims brought under 42 U.S.C. § 1983 [and Title IX] should borrow the state statute of limitations for personal injury actions” … . Where a state “has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions[,] . . . the residual or general personal injury statute of limitations applies”… . Here, defendant correctly contends, and plaintiff does not dispute, that New York’s three-year statute of limitations for non-specified personal injury claims applies to the federal causes of action asserted here (see CPLR 214 [5] …).

… Plaintiff contends that CPLR 214-g, which revives certain civil claims and causes of action for damages suffered as a result of childhood sexual abuse that would otherwise be barred by a statute of limitations, must be borrowed along with CPLR 214 (5) in determining whether her federal causes of action are timely. …

We … conclude that CPLR 214-g is not a revival statute related to the residual personal injury statute of limitations applicable to plaintiff’s section 1983 cause of action … . * * *

… [W]e conclude that plaintiff’s Title IX cause of action should also have been dismissed as time-barred. BL DOE 3 v Female Academy of the Sacred Heart, 2021 NY Slip Op 06480, Fourth Dept 11-19-21

 

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