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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THAT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE AN ADEQUATE SPEEDY TRIAL MOTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing. The motion alleged defense counsel was ineffective for failing to make an adequate speedy trial motion. The Fourth Department found there was a question of fact about whether 88 days should have been excluded from the speedy trial calculation because the defendant was evading arrest:

… [T]he People contended that the speedy trial motion would have been denied even if properly pleaded because defendant was attempting to avoid apprehension and thus the 88 days preceding the People’s first statement of readiness were excludable pursuant to CPL 30.30 (4) (c) (i). In denying the CPL 440.10 motion without a hearing, the court concluded that the trial court had ruled that the 88 days between the commencement of the action and the People’s initial statement of readiness “was not chargeable to the People[] because defendant evaded arrest.” We note, however, that the only evidence in the record supporting the conclusion that defendant was evading arrest was the prosecutor’s statement at defendant’s arraignment on the indictment that she understood that defendant had “fled the area” and was heading to the New York City area, an assertion that was based solely on the supposition of an unnamed member of the police department’s central investigation division. We thus conclude that defendant’s submissions “support[] his contention that he was denied effective assistance of counsel . . . and raise[] a factual issue that requires a hearing” … and that “[t]he People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing” … . People v Reed, 2021 NY Slip Op 00758, Fourth Dept 2-5-21

 

THE DUE PROCESS PRONG OF LONG-ARM JURISDICTION WAS NOT DEMONSTRATED WITH RESPECT THE GERMAN MANUFACTURER; IN ADDITION THE FAILURE TO WARN CAUSE OF ACTION WAS PREEMPTED BY THE FEDERAL MEDICAL DEVICE AMENDMENTS TO THE FDA REGULATIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the due process prong of long-arm jurisdiction was not satisfied and the failure to warn allegation was preempted by Federal Drug Administration (FDA) regulations under the Medical Device Amendments (MDA). The medical device was not described in the decision but it apparently involves treatment of the eye:

Plaintiff has not shown a regular flow of Morcher’s [the German manufacturer’s] goods into New York, advertising directed at New York, the delivery of Morcher’s goods into the stream of commerce with the expectation of purchase in New York, or any other facts that may arguably have established jurisdiction … . …

It is undisputed that the device in question is a class III medical device with respect to which the federal government has established requirements. Thus, we must determine whether plaintiff’s “common-law claims are based upon New York requirements with respect to the device that are ‘different from, or in addition to,’ the federal ones, and that relate to safety and effectiveness” … . If so, those claims are preempted by the MDA … . If, on the other hand, the common-law claims provide a damages remedy and are premised on a violation of the regulations of the Food and Drug Administration (FDA), they ” ‘parallel,’ rather than add to, federal requirements” and are not preempted … . … Plaintiff … fails to identify any federal statute or regulation that requires defendants to provide warnings to consumers or their physicians … . Barone v Bausch & Lomb, Inc., 2021 NY Slip Op 00745, Fourth Dept 2-5-21

 

FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the for cause challenges to two jurors should have been granted. Both jurors said they would have difficulty considering each crime separately when the crimes occurred close in time. The judge did not elicit any responses from the two jurors after they expressed their concerns:

… [D]efense counsel questioned each juror as to whether he or she would have trouble separating the proof in the case or understanding that the prosecution had to prove each individual incident beyond a reasonable doubt, as well as whether they could set aside any preconceived notions and consider each incident individually. Two prospective jurors indicated that they were not sure if they could consider each incident separately. Specifically, one prospective juror stated, “I don’t know if I could,” while a second prospective juror stated, “I’m not sure. Like I’m not sure who said it, like the timeframe like if it was one after another, another day, day, day, I don’t know if I can separate it. But if it’s like once, you know, a year or three years later this—maybe I would be able to separate it then.” …

In response, the court explained to the entire panel that defendant “is presumed to be innocent of each and every one of those [allegations], and the fact that there was something on one day, something on another day, you’re going to decide each and every one of those on its own merits.” The court also specifically asked the panel if they understood that they had “to decide each one of the cases on their—each one of the charges on their own merit.” The prospective jurors remained silent.  People v Padilla, 2021 NY Slip Op 00732, Fourth Dept 2-5-21

 

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HUMAN RIGHTS LAW CLAIMS DID NOT ALLEGE DISCRIMINATION; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DOES NOT APPLY TO TERMINATION OF AT WILL EMPLOYMENT; WORKERS’ COMPENSATION IS THE EXCLUSIVE REMEDY FOR NEGLIGENCE ACTIONS AGAINST AN EMPLOYER; PUNITIVE DAMAGES NOT AVAILABLE FOR THE EMPLOYMENT DISCRIMINATION OR BREACH OF CONTRACT CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that several of plaintiff’s causes of action, as well as claims for punitive damages, should have been dismissed. Plaintiff’s lawsuit stemmed from alleged wrongful conduct in terminating the plaintiff’s employment and evicting him from a work-provided apartment:

… [P]laintiff alleges that he engaged in “protected activity” when his attorney sent a letter to one or more defendants about an altercation between plaintiff and a neighbor. We agree with defendants that … sending the letter did not constitute “protected activity” because the letter did not suggest, much less allege, that anyone had engaged in “unlawful discrimination,” i.e., conduct prohibited by the [Human Rights Law]. …

… [I]t is well established that “[t]ort causes of action alleging intentional infliction of emotional distress . . . ‘cannot be allowed in circumvention of the unavailability of a tort claim for wrongful discharge or the contract rule against liability for discharge of an at-will employee’ ” … . …

With respect to the fifth and eighth causes of action (negligent infliction of emotional distress and negligent hiring, training, and supervision, respectively), it is well established that workers’ compensation benefits are the “exclusive remedy for . . . injuries allegedly caused by the negligence of [a person’s] employer and fellow employee” … . …

Punitive damages are not available for the employment discrimination claims in the complaint … . … [T]he breach of contract claim … does not qualify for punitive damages because plaintiff does not allege that [the] alleged breach of contract was ” ‘aimed at the public generally’ ” … . Miller v National Prop. Mgt. Assoc., Inc., 2021 NY Slip Op 00729, Fourth Dept 2-5-21

 

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DEFENDANT WAS NOT INFORMED OF THE DIRECT CONSEQUENCES OF HIS GUILTY PLEA PRIOR TO ENTERING THE PLEA; THEREFORE THE PLEA WAS VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was not provided with sufficient information about the direct consequences of his guilty prior to entering the plea:

… Supreme Court failed to inform [defendant] that a fine would be imposed and failed to advise him that, following his indeterminate term of imprisonment, he would be subject to a mandatory three-year period of conditional discharge, during which he would be required to install and maintain an ignition interlock device in his vehicle … . …

“The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine”… , and the failure to advise a defendant at the time of his or her guilty plea of a direct consequence of that plea “requires that [the] plea be vacated” … . Here, defendant was advised of the fine and mandatory conditional discharge for the first time immediately prior to sentencing, when the prosecutor stated that defendant would be required to pay “all mandatory fines [and] surcharges” and that the period of incarceration “would be followed by a conditional discharge for the ignition interlock to be enforced.” We note that preservation of defendant’s contention was not required under the circumstances of this case inasmuch as “defendant did not have sufficient knowledge of the terms of the plea at the plea allocution and, when later advised, did not have sufficient opportunity to move to withdraw [his] plea” … . People v Tung Nguyen, 2021 NY Slip Op 00724, Fourth Dept 2-5-21

 

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WHETHER THE HOUSE FIRE WAS DELIBERATELY SET WAS NOT RELEVANT TO THE ESSENTIAL ELEMENTS OF THE INSURANCE-FRAUD OFFENSES STEMMING FROM OVERSTATING THE VALUE OF DESTROYED ITEMS AND MAKING CLAIMS FOR ITEMS DEFENDANT DID NOT OWN OR POSSESS; THEREFORE THE PROBATIVE VALUE OF THE ARSON INVESTIGATOR’S TESTIMONY OUTWEIGHED ITS PROBATIVE EFFECT; ALTHOUGH THE ERRORS WERE NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the arson investigator’s testimony the fire had been deliberately set was irrelevant to the insurance-fraud offenses and was sufficiently prejudicial to require a new trial. The defendant was charged with making false insurance claims for objects alleged to be lost in the house fire:

… [T]he investigator’s conclusion was highly prejudicial because it allowed the jury to speculate that defendant burned the house down with all of her possessions inside of it in order to collect the insurance money, which, if true, would be conclusive of her alleged intent to defraud. That prejudice was compounded by the limiting instructions that the court provided to the jury after opening statements. Inasmuch as the court had concluded prior to trial that the evidence in question was relevant and admissible for the purpose of completing the narrative of events, the court appropriately instructed the jury that the evidence would be received only for that limited purpose and, consistent with defendant’s request, also instructed the jury that she had not been charged with arson. However, the court further instructed the jury that, “every time you hear the word arson, . . . you should be thinking about not tying the arson to [defendant].” We conclude that the further instruction, if anything, had the effect of linking defendant to the arson in the minds of the jurors. Moreover, the prejudice to defendant was also compounded by the court’s failure to issue appropriate limiting instructions when the evidence in question was admitted and during the final charge to the jury … . Although defendant failed to preserve any challenge to the content or timing of the limiting instructions … we exercise our power to review in the interest of justice her contentions in those respects … . People v Murray, 021 NY Slip Op 00722, Fourth Dept 2-5-21

 

ONCE PETITIONER’S PATERNITY HAD BEEN ESTABLISHED BY GENETIC TESTING FAMILY COURT HAD THE AUTHORITY TO VACATE THE ACKNOWLEDGMENT OF PATERNITY (AOP) PREVIOUSLY EXECUTED BY MOTHER’S BOYFRIEND (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined that once petitioner had been established to be the father of the child by court-ordered genetic testing Family Court had the power to vacate mother’s boyfriend’s acknowledgment of paternity (AOP):

… [G]iven the continued existence of the AOP, we acknowledge respondents’ concern that the order of filiation might have effectively created an impermissible three-parent arrangement for the subject child … . The court … had the power to vacate the AOP to address that concern … , and we conclude that the AOP should be vacated in order to eliminate any question that petitioner is the child’s only legal father. We therefore modify the order by granting petitioner’s motion in its entirety and vacating the AOP. Matter of Ryan M. E. v Shelby S., 2021 NY Slip Op 00717, Fourth Dept 2-5-21

 

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THE COURT OF CLAIMS PROPERLY DISMISSED THE CLAIM FINDING THAT CLAIMANT’S DECEDENT WOULD HAVE BEEN KILLED IN THE CAR ACCIDENT EVEN IF THE PROPER W BEAM AS OPPOSED TO THE IMPROPER BOX BEAM HAD BEEN ERECTED AS A BARRIER ACROSS THE CLOSED BRIDGE; TWO JUSTICE DISSENT ARGUED THE MAJORITY IMPROPERLY APPLIED A “BUT FOR” STANDARD OF CAUSATION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the Court of Claims properly dismissed the claim on the ground that claimant’s decedent would have been killed in the car crash even if the barrier the car struck was a proper W beam as opposed to an improper steel box beam. The beams were erected across a closed bridge and claimant’s decedent was a passenger in the convertible which struck and passed under the box beams at both ends of the bridge. The dissenters argued that, upon remittal after a reversal in the first appeal, the Court of Claims was called upon to determine if the box beam was a dangerous condition which was a proximate cause in aggravating the injuries and did not do so. The dissenters noted that claimant’s decedent’s head injuries occurred when the car passed under the second box beam and he survived for 18 hours after the accident:

… [W]e remitted the matter to the Court of Claims to determine “whether the steel box beam was a substantial factor in aggravating decedent’s injuries and causing his death” … . …

… [W]e conclude that a fair interpretation of the evidence supports the court’s determination that the steel box beam was not a substantial factor in aggravating decedent’s injuries and causing his death. Claimant’s witnesses testified with respect to the type of barrier that defendants were required to use to block access to the bridge, i.e., a W-beam. Claimant also presented evidence that decedent’s impact with a W-beam would have led to the same result, i.e., a fatality.

FROM THE DISSENT:

… [T]he majority improperly elected to apply a “but for” standard of causation, rather than considering whether the negligence was a proximate cause of injury. In our view, applying a “but for” causation standard “would relieve from liability a negligent actor if the same harm might have been sustained had the actor not been negligent; yet the law is clear that that fact may be considered in fixing damages but does not relieve from liability” …  . Reames v State of New York, 2021 NY Slip Op 00712, Fourth Dept 2-5-21

 

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IN THE FOURTH DEPARTMENT, UNLIKE IN THE SECOND DEPARTMENT, A MUNICIPALITY MOVING FOR SUMMARY JUDGMENT IN A SLIP AND FALL CASE NEED ONLY SHOW IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION EVEN WHERE THE COMPLAINT ALLEGES THE MUNICIPALITY CREATED THE DANGEROUS CONDITION; HERE AN ONLINE COMPLAINT DID NOT SATISFY THE WRITTEN NOTICE REQUIREMENT; EVIDENCE A MUNICIPAL CONTRACTOR CREATED THE DANGEROUS CONDITION RAISED A QUESTION OF FACT ABOUT MUNICIPAL LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined: (1) disagreeing with the Second Department, a municipality moving for summary judgment in a slip and fall case need only show it did not receive written notice of the dangerous condition and need not affirmatively show it did not create the dangerous condition even if alleged in the complaint; (2) if the lack of written notice is demonstrated the burden shifts to plaintiff to show the municipality created the condition; (3) the written notice requirement is not necessarily satisfied by an online (CityLine) complaint; and (4) plaintiff raised a question of fact whether a municipal contractor created the dangerous condition. Plaintiff was injured when his bicycle went into a pavement cutout concealed by a puddle:

… [D]efendant met its initial burden by submitting the affidavit of its commissioner of public works establishing that he did not receive prior written notice of the allegedly dangerous or defective condition in the street as required by its prior notification law … . As a result, the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact as to the requisite written notice or, as relevant here, the applicability of the affirmative negligence exception … . …

… [As] CityLine complaints were simply received by complaint investigators and routed through a computer system to the appropriate department, and … such complaints were stored solely in the electronic file on the computer system, there is no indication in the record that such complaints were actually given to the commissioner of public works as required by the prior notification law … . …

… [T]here is circumstantial evidence that defendant created the defect through its contractor’s actions and, thus, a triable issue of fact whether the affirmative negligence exception applies … . Horst v City of Syracuse, 2021 NY Slip Op 00708, Fourth Dept 2-5-21

 

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THE ESTATE OF A PARTY TO A SEPARATION AGREEMENT MAY SEEK A DOWNWARD MODIFICATION OF THE AGREED MAINTENANCE PAYMENTS; THE DISSENT ARGUED ONLY THE PARTY, NOT THE ESTATE OF THE PARTY, CAN SEEK A DOWNWARD MODIFICATION AND THE MATTER SHOULD BE HANDLED IN PROBATE (FOURTH DEPT).

The Fourth Department, over a dissent, determined that the estate of a party to a separation agreement that was merged but not incorporated into a judgment of divorce could seek a downward modification of the maintenance payments. The dissent argued only the party to the agreement, not the estate of the party, could seek a downward modification based on extreme hardship:

FROM THE DISSENT:

… [T]his Court recently held that plaintiff and defendant’s decedent entered into a Separation and Property Settlement Agreement (settlement agreement), which was incorporated but not merged into a judgment of divorce, whereby decedent agreed to pay lifetime maintenance to plaintiff that continued even in the event of decedent’s death … . * * *

Pursuant to the Domestic Relations Law, “[w]here . . . [a separation agreement] remains in force, no modification of an order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party” (§ 236 [B] [9] [b] [1] …). A modification of maintenance based on extreme hardship is thus, personal to the parties who contracted as to the amount of maintenance in the separation agreement and, as noted, a modification of that amount has only been awarded in situations involving personal hardships. In my view, an “estate” can never establish a personal hardship and thus, is never entitled to a downward modification of maintenance. While defendant in this case submitted evidence that the continued payment of the maintenance obligation would pose a hardship on the estate, such a hardship is not upon any party to the settlement agreement. Indeed, it is only a hardship upon the beneficiaries of decedent’s estate who wish to maximize their inheritance. In my view, any difficulty in the estate’s ability to pay the amount of lifetime maintenance agreed to by decedent is an issue that should be raised by the estate in the probate court when determining the reserve funds to be set aside to satisfy the maintenance obligation. Gardner v Zammit, 2021 NY Slip Op 00707, Fourth Dept 2-5-21

 

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