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AN AMENDED STIPULATED ORDER CONCERNING THE WIFE’S INTEREST IN THE HUSBAND’S LIFE INSURANCE AND 401k IN THE CONTEXT OF AN ONGOING DIVORCE ACTION, ISSUED AFTER THE HUSBAND’S DEATH, WAS WITHOUT EFFECT EVEN THOUGH THE ORGINAL STIPULATED ORDER WAS ISSUED ONE DAY BEFORE THE HUSBAND’S DEATH; THE DIVORCE ACTION ABATED UPON THE HUSBAND’S DEATH (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the death of the husband abated the divorce action and an “amended stipulated order” issued after the husband’s death concerning the wife’s interest in the husband’s insurance policy and 401k account was without effect. The original stipulated order had been issued one day before the husband’s death:

It is well settled that “where one party to a divorce action dies prior to the rendering of a judicial determination which dissolves or terminates the marriage, the action abates inasmuch as the marital relationship between the parties no longer exists” … . “Although an exception to this rule exists where the court has made a final adjudication of divorce but has not performed ‘the mere ministerial act of entering the final judgment,’ ” that exception does not apply here inasmuch as the court had merely granted some pretrial orders but had not made any final adjudication of divorce … . In this instance, the husband’s death “abated the . . . action for a divorce and ancillary relief” … . Adams v Margulis, 2021 NY Slip Op 00971, Fourth Dept 2-11-21

 

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THE JUDGE WHO DISMISSED THE ACTION PURSUANT TO CPLR 205 (a) FOR FAILURE TO PROSECUTE DID NOT PLACE ON THE RECORD THE SPECIFIC CONDUCT CONSTITUTING NEGLECT; THEREFORE THE ACTION WAS TIMELY FILED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the action should not have been dismissed because the tolling provisions of CPLR 205 (a) applied. The judge who dismissed the action did not place on the record specific conduct constituting neglect to prosecute demonstrating a general pattern of delay:

… [T]he tolling provisions of CPLR 205 (a) apply inasmuch as the 2012 action was not dismissed for neglect to prosecute. CPLR 205 (a) provides, in relevant part, that “[i]f an action is timely commenced and is terminated in any other manner than by . . . a dismissal of the complaint for neglect to prosecute the action . . . , the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination,” even though the new action would otherwise be barred by the statute of limitations. “Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … .

Here, it is undisputed that the 2012 action was timely commenced and that the instant action was commenced within six months of the termination of the 2012 action. …

Here, the court did not outline a general pattern of delay by plaintiff in its order dismissing the 2012 complaint or in the attached decision … . Broadway Warehouse Co. v Buffalo Barn Bd., LLC, 2021 NY Slip Op 00963, Fourth Dept 2-11-21

 

THE PEOPLE DID NOT OBTAIN PERMISSION TO PRESENT TO A SECOND GRAND JURY RENDERING THE SECOND INDICTMENT VOID (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the indictment to which defendant plead guilty was void because the People did not obtain the court’s permission to present to a second grand jury after the first indictment was dismissed:

… [T]he People failed to seek leave pursuant to CPL 210.20 (4) to resubmit the matter to a second grand jury after County Court granted that part of defendant’s omnibus motion seeking to dismiss the original indictment as against him on the ground that the evidence before the first grand jury was legally insufficient. “[T]he failure to obtain leave of court to present a matter to a second grand jury, where required, deprives the grand jury of jurisdiction to hear the matter, thereby rendering the indictment void . . . , which, in turn, deprives the court of jurisdiction” … . Although, here, defendant failed to make a motion to dismiss the indictment issued by the second grand jury pursuant to CPL 210.20 (1), the failure of the People to obtain from the court authorization to submit the matter to the second grand jury deprived the second grand jury of jurisdiction to hear the matter, thereby rendering void the indictment issued by the second grand jury and depriving the court of jurisdiction, and the right to challenge a lack of jurisdiction cannot be waived by defendant … . Under these circumstances, we must dismiss the indictment issued by the second grand jury that is at issue on this appeal … . We note that there is no limit to the number of times that the People may resubmit a charge to a grand jury with leave pursuant to CPL 210.20 (4) … . People v Owens, 2021 NY Slip Op 00958, Fourth Dept 2-11-21

 

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IN THIS DENTAL MALPRACTICE ACTION, PLAINTIFF RAISED ISSUES OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS, THE DEVIATION FROM THE STANDARD OF CARE, AND THE LACK OF INFORMED CONSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this dental malpractice action, determine there were questions of fact about (1) the applicability of the continuous treatment doctrine to toll the statute of limitations, (2) the deviation from the standard of care, and (3) the lack of informed consent:

The instant case does not involve gaps in treatment longer than the 2½-year statute of limitations … , and “a discharge by a physician [or dentist] does not preclude application of the continuous treatment toll if the patient timely initiates a return visit to complain about and seek further treatment for conditions related to the earlier treatment” … . …

… [B]y submitting the affidavits of her experts, plaintiff raised issues of fact whether defendants deviated from the standard of care and whether such deviation was a proximate cause of plaintiff’s injuries … . …

… [P]laintiff raised an issue of fact whether she would have opted for extraction of several teeth and placement of implants had she been fully informed … . Bellamy v Baron, 2021 NY Slip Op 00953, Fourth Dept 2-11-21

 

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FRAUD WAS NOT ADEQUATELY PLED, THE SIX-YEAR STATUTE OF LIMITATIONS DID NOT APPLY TO THE FRAUD ALLEGATIONS, THE JUDICIARY LAW 487 CAUSE OF ACTION WAS NOT ADEQUATELY PLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the fraud and Judiciary Law 487 causes of action should have been dismissed. All of the elements of fraud were not pled with particularity, the six-year statute of limitations did not apply because the fraud allegations were identical to the injurious falsehood and tortious interference claims, and the Judiciary Law 487 causes of actions did not relate to any proceedings before the court:

Although fraud claims are generally governed by a six-year statute of limitations (see CPLR 213 [8]), “courts will not apply the fraud [s]tatute of [l]imitations if the fraud allegation is only incidental to the claim asserted; otherwise, fraud would be used as a means to litigate stale claims” … . “In classifying a cause of action for statute of limitations purposes, the controlling consideration is not the form in which the cause of action is stated, but its substance” … . Inasmuch as the gravamen of plaintiffs’ fraud claim is that plaintiffs suffered reputational damages and a loss of goodwill as a result of defendants’ conduct and that [plaintiff] lost its contract … as a result of defendants’ fraudulent scheme, we conclude that the fraud allegation is incidental to the injurious falsehood and tortious interference claims, which were dismissed by the court as time-barred.

… [T]he court erred in denying that part of the motion seeking to dismiss the ninth cause of action, for violations of Judiciary Law § 487 … .Under section 487 (1), an attorney who “[i]s guilty of any deceit or collusion . . . with intent to deceive the court or any party,” is guilty of a misdemeanor and is potentially liable for treble damages to be recovered in a civil action. A violation of the statute may be established by evidence of the defendant’s alleged deceit … but “alleged deceit that is not directed at a court must occur in the course of ‘a pending judicial proceeding’ ” … .

… The complaint failed to allege, however, that [defendant law firm] engaged in egregious misconduct or made a material false statement in the course of a judicial proceeding. The allegedly deceitful memorandum was not directed at the court, and the complaint failed to allege that it was promulgated during a pending judicial proceeding … . Dreamco Dev. Corp. v Empire State Dev. Corp., 2021 NY Slip Op 00952, Fourth Dept 2-11-21

 

CERTAIN TRANSFERS AND LOANS SHOULD NOT HAVE BEEN INCLUDED IN THE CALCULATION FOR THE PERIOD OF MEDICAID INELIGIBILITY (FOURTH DEPT).

The Fourth Department, reversing (modifying) the NYS Department of Health (DOH), determined several transfers and loans made before petitioner was diagnosed with Parkinson’s in 2016 should not have been included in the calculation for the period of Medicaid ineligibility. The facts are too complex to summarize here:

… “T]he relevant standard is not whether [petitioner] could or should have foreseen that nursing home placement might eventually become necessary, but whether she made the requisite showing that the transfers were made ‘exclusively for a purpose other than to qualify for medical assistance’ (Social Services Law § 366 [5] [e] [4] [iii] [B]). The fact that a future need for nursing home care may be foreseeable for a person of advanced age with chronic medical conditions is not dispositive of the question whether a transfer by such a person was made for the purpose of qualifying for such assistance” … . Matter of Underwood v Zucker, 2021 NY Slip Op 00951, Fourth Dept 2-11-21

 

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THE TESTIMONY OF THE ACCOMPLICE WAS SUFFICIENTLY CORROBORATED; THE INDICTMENT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the indictment should not have been dismissed because there was sufficient corroboration of the testimony of an accomplice:

The People contend that County Court erred in determining that the grand jury testimony of defendant’s accomplice was not sufficiently corroborated. We agree. The corroboration requirement is satisfied by evidence that ” ‘tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ ” … . Sufficient corroboration may be provided by evidence that ” ‘harmonize[s]’ ” with the accomplice testimony, i.e., when “read with the accomplice’s testimony, [it] makes it more likely that the defendant committed the offense” … .

Here, the accomplice’s testimony that, on a specific date, defendant and the accomplice had a telephone conversation regarding the alleged criminal conduct is corroborated by defendant’s cell phone records, which establish “that cell phone calls were made as the accomplice[] testified” … . The accomplice’s testimony is also corroborated by, among other things, the testimony of non-accomplices and the transcript of the criminal jury trial during which the charged offenses were allegedly committed  … . People v Baska, 2021 NY Slip Op 00947, Fourth Dept 2-11-21

 

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A CORPORATION OPERATING A SKILLED NURSING FACILITY MAY BRING A PLENARY ACTION BASED UPON THE DENIAL OF MEDICAID BENEFITS FOR ONE OF ITS RESIDENTS; NO NEED TO EXHAUST ADMINISTRATIVE REMEDIES AND NOT SUBJECT TO THE FOUR-MONTH STATUTE OF LIMITATIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the corporation that operates a skilled nursing facility may bring a plenary action based on the denial of Medicaid benefits for one of its residents:

Plaintiff, a domestic corporation that operates a skilled nursing facility, commenced this action seeking a declaratory judgment or money damages for expenses it allegedly incurred in providing care for one of its residents after the resident was determined to be ineligible for Medicaid benefits during a penalty period of 11.74 months. Defendant moved to dismiss the complaint on the grounds, inter alia, that plaintiff failed to exhaust its administrative remedies and that the statute of limitations had expired … .

… [A]skilled nursing facility such as plaintiff “may bring a plenary action in its own right against the agency designated to declare Medicaid eligibility” … . In such a plenary action, the facility is “not bound by the patient’s failure to request an administrative appeal of the local agency’s denial of medical assistance” or “by the four-month Statute of Limitations contained in CPLR 217” … . VDRNC, LLC v Merrick, 2021 NY Slip Op 00945, Fourth Dept 2-11-21

 

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DEFENDANT WAS CONVICTED OF DIRECTING THE CODEFENDANT TO KILL; THE CODEFENDANT WAS ACQUITTED OF MURDER; THE VERDICTS WERE REPUGNANT; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE REPUGNANT VERDICTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant’s attorney was ineffective for failing to object to the repugnant verdict. Defendant was convicted of directing the codefendant to shoot and kill the victim. The codefendant was acquitted of the murder charge:

We agree with defendant … that he was denied meaningful representation at trial inasmuch as there is no reasonable and legitimate trial strategy for defense counsel’s failure to object to the repugnant verdicts  … . …

… “[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime as charged, for which the guilty verdict was rendered” … . “The determination as to the repugnancy of the verdict is made solely on the basis of the trial court’s charge and not on the correctness of those instructions” … . The repugnancy doctrine also applies when one codefendant is convicted of a crime while another is acquitted of the same crime … . …

By acquitting the codefendant, the jury negated an essential element of the crime for which defendant was charged, i.e., that the codefendant committed the offense at defendant’s direction … . People v Jennings, 2021 NY Slip Op 00944, Fourth Dept 2-11-21

 

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AN OFFICER MAY FOLLOW A SUSPECT IN A POLICE VEHICLE; THE OFFICER DID NOT GET OUT OF HIS VEHICLE AND CHASE THE DEFENDANT UNTIL HE SAW THE DEFENDANT DISCARD A WEAPON; THE SEIZURE OF THE WEAPON WAS NOT THE RESULT OF UNLAWFUL POLICE CONDUCT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant did not discard a weapon in response to unlawful police conduct. Therefore the weapon should not have been suppressed. In response to a 911 call a police officer in a car was observing the defendant. The officer pursued the defendant only after he saw the defendant discard a weapon:

As the … officer approached the scene, he observed defendant in a black coat walking westbound on the sidewalk. Upon seeing the third officer in his vehicle, defendant ran down a driveway. The … officer pulled into the driveway of that residence and, while still in the vehicle, observed defendant toss what appeared to be a long-barreled handgun over the fence while he ran. It was at that point that the third officer exited his vehicle and chased defendant, ultimately apprehending him. A loaded .22-caliber firearm was found on the ground in the backyard adjacent to the driveway.

… “[A]]n officer may use his or her vehicle to unobtrusively follow and observe an individual without elevating the encounter to a level three pursuit” … . A police-civilian encounter will escalate to a level three encounter, i.e., a forcible stop or seizure, “whenever an individual’s freedom of movement is significantly impeded . . . Illustrative is police action which restricts an individual’s freedom of movement by pursuing one who, for whatever reason, is fleeing to avoid police contact” … .

Here, the … officer had activated his emergency lights en route to the scene and before he encountered defendant. Upon observing defendant walking on the sidewalk, the third officer stopped his vehicle in a driveway. At no point did the third officer engage in any particularized act toward defendant or restrict his freedom of movement … . People v Moore, 2021 NY Slip Op 00927, Fourth Dept 2-11-21

 

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