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THE FINDING THAT DEFENDANT USED THE CONCRETE SIDEWALK AS A DANGEROUS INSTRUMENT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; DEFENDANT PUNCHED THE VICTIM WHEN THE VICTIM WAS STANDING, THE VICTIM FELL TO THE SIDEWALK, AND DEFENDANT CONTINUED TO PUNCH THE VICTIM, CAUSING THE VICTIM’S DEATH (FOURTH DEPT).

The Fourth Department, reversing the reckless assault conviction, determined the allegation the defendant used the concrete sidewalk as a dangerous instrument was not supported by legally sufficient evidence:

Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree (Penal Law § 120.05 [1] [intentional assault], [4] [reckless assault]), arising from an altercation during which he punched the victim in the face approximately three times, causing the victim to fall and hit his head on the concrete sidewalk, then continued to punch the victim while he was lying on the ground unconscious. The victim died as a result of his injuries. * * *

Although a sidewalk or concrete surface can be “used” as a dangerous instrument … , the testimony of the eyewitnesses establishes that the blows to the victim, which were delivered using a cross-wise motion, were not executed in such a way as to establish that defendant consciously disregarded a substantial and unjustifiable risk that the victim’s head would have contact with the concrete … . Under the circumstances presented, there is no “valid line of reasoning and permissible inferences from which a rational [person]” could conclude that defendant recklessly used the sidewalk as a dangerous instrument … . People v Desius, 2020 NY Slip Op 06611, Fourth Dept 11-13-20

 

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ALTHOUGH CONSEQUENTIAL DAMAGES (MORTGAGE PAYMENTS, TAXES, INSURANCE, ETC.) ARE NOT USUALLY AVAILABLE WHEN A BUYER BREACHES A REAL ESTATE PURCHASE AGREEMENT BECAUSE THE SELLER REMAINS IN THE HOUSE AND THOSE COSTS ARE NOT CAUSED BY THE BREACH, THE SAME IS NOT TRUE FOR A COMMERCIAL SELLER WHO DOES NOT RESIDE IN THE HOUSE AND MUST MAKE SIMILAR PAYMENTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined consequential damages were available to the commercial developer in this breach of a real estate purchase agreement case. Usually when a buyer breaches a purchase agreement consequential damages are not available because the seller remains in the house and the mortgage and other costs of living there have nothing to do with the breach. However, where, as here, the seller does not live in the house, the expenses association with the maintenance and care of the home after the breach are financial losses:

As a general rule, consequential damages are not available to a seller of residential real estate when the purchaser breaches the contract … . That is because, typically, the seller “retain[s] ownership, use and enjoyment of the premises,” and it cannot be said that the “mortgage interest expenses, repairs or utilities paid postbreach” are proximately caused by the breach … .

Where, however, the seller is a commercial developer, the seller does not live in the home and never intends to do so. Upon the purchaser’s breach, the developer begins to incur costs that reduce the profit margin. Such carrying costs may include, among other things, maintenance and utility costs as well as real property taxes. Whereas the ordinary residential seller, by living in the home after the purchaser’s breach, receives value for the carrying costs until the subsequent sale, the commercial developer does not receive such value. Instead, the carrying costs are nothing but a financial loss. Chrisanntha, Inc. v deBaptiste, 2020 NY Slip Op 06607, Fourth Dept 11-13-20

 

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THE DISTINCTION BETWEEN DETERMINING THE VALIDITY OF AN AGREEMENT TO ARBITRATE, THE COURT’S ROLE, AND THE INTERPRETATION OF A PROVISION IN THE AGREEMENT, THE ARBITRATOR’S ROLE, EXPLAINED; THE MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the motion to compel arbitration should have been granted. Among several substantive issues (not summarized here) the court explained the difference between determining the validity of the arbitration agreement, the court’s role, and interpreting a provision in the agreement, the arbitrator’s role:

The only challenge … that plaintiff could raise in opposition to that part of defendants’ motion seeking to compel arbitration is whether a valid arbitration agreement exists, which is for a court to determine … . The challenge must be directed “specifically to the agreement to arbitrate” … . The validity and enforceability of arbitration agreements is governed by the rules applicable to contracts generally … . “[A] party may resist enforcement of an agreement to arbitrate on any basis that could provide a defense to or grounds for the revocation of any contract, including fraud, unconscionability, duress, overreaching conduct, violation of public policy, or lack of contractual capacity” … .

… [P]laintiff failed to raise any challenge to the validity of the agreement to arbitrate. … [P]laintiff relied on a provision in the arbitration agreement that stated that it would not apply “to any employee represented by a labor organization … ” which plaintiff contends shows that there was no valid agreement to arbitrate. … [P]laintiff’s contention conflates the issue of whether there is a valid agreement to arbitrate, which is for a court to decide, with the issue of the arbitrability of the dispute, which is for the arbitrator to determine. The arbitrability issue includes the interpretation of any contract provision, such as the provision exempting union employees from the arbitration agreement under certain circumstances … . Basile v Riley, 2020 NY Slip Op 06600, Fourth De[pt 11-13-20

 

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THE COUNTY DEMONSTRATED THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, THE DEFENDANTS’ ACTIONS WERE DISCRETIONARY AND THEREFORE PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, AND THERE IS NO CAUSE OF ACTION IN NEW YORK FOR NEGLIGENT INVESTIGATION; PLAINTIFF’S WRONGFUL DEATH ACTION BASED UPON THE DEFENDANTS’ ALLEGED FAILURE TO PROTECT PLAINTIFF’S DECEDENT FROM ABUSE BY FAMILY MEMBERS DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s and the sheriff’s motions for summary judgment in this wrongful death case should have been granted. Plaintiff alleged the defendants were aware that plaintiff’s decedent was being abused by her half brother and mother and did not act to protect her. The Fourth Department held: (1) there was no special relationship between the county and plaintiff; (2) governmental immunity protected the defendants because their actions involved the exercise of discretion; (3) there is no cause of action in New York for negligent investigation or prosecution:

“[A]t the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him [or her] either to relax his [or her] own vigilance or to forego other available avenues of protection” … . Here, [plaintiff’s decedent’s brother] did not in fact relax his own vigilance inasmuch as he made two follow-up calls to the … caseworker asking her to reopen the investigation, and he was not induced to forego other avenues of relief … . * * *

Defendants established that the actions of the … caseworkers “resulted from discretionary decision-making” … . While the caseworkers may have been negligent, they were exercising their discretion throughout the investigations … . * * *

… ‘[A] claim for negligent training in investigative procedures [against the Sheriff] is akin to a claim for negligent investigation or prosecution, which is not actionable in New York’ ” … . Further, inasmuch as the allegations of negligent hiring, training, and supervision against the Sheriff all involved conduct requiring the exercise of the Sheriff’s discretion and judgment, the Sheriff established his entitlement to the governmental function immunity defense … . Maldovan v County of Erie, 2020 NY Slip Op 06595, Fourth Dept 11-13-20

 

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THE POLICE CAR FOLLOWED DEFENDANT, FIVE FEET BEHIND HIM, AS HE WALKED THROUGH A NARROW PASSAGEWAY; THE POLICE WERE NOT IN PURSUIT AND THE HANDGUN DISCARDED BY THE DEFENDANT WAS PROPERLY SEIZED (FOURTH DEPT).

The Fourth Department determined the police, who followed defendant in a police car as he walked through a narrow passageway (a cut-through) between two streets, were not in pursuit of defendant. Therefore the weapon discarded by the defendant was properly seized:

The evidence at the suppression hearing established that a police officer responding to the sound of gunshots observed a person walking towards him a few blocks away from the location of the incident. The officer lost sight of the person before he was able to speak with him to determine whether the person had heard the gunshots, but he relayed over the police radio a generic physical description of the person he had encountered and that person’s location. Shortly thereafter, a second police officer encountered defendant not far from the radioed position. The second officer engaged defendant in a brief conversation from her patrol vehicle, after which defendant entered a nearby cut-through—i.e., a pedestrian pathway that connected two streets. When defendant first entered the cut-through, the second officer did not consider him a suspect in the shooting and he was not engaged in any unlawful activity. Nonetheless, the second officer, still in her patrol vehicle and now accompanied by another officer in a separate patrol vehicle, followed defendant along the pathway, maintaining a distance of about five feet from defendant. The cut-through was so narrow at one point that the officers would not have been able to open the doors of their patrol vehicles. When defendant reached the end of the cut-through, he removed a handgun from his pocket and ran. As he ran, defendant discarded the handgun and was thereafter arrested. * * *

The police did not activate their vehicles’ overhead lights or sirens, exit their vehicles, or significantly limit defendant’s freedom of movement along the pedestrian path … . Indeed, defendant remained free to keep walking down the path, even if at one point on the path he could not have turned around and traveled in the opposite direction. People v Allen, 2020 NY Slip Op 06594, Fourth Dept 11-13-20

 

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ALTHOUGH THE TRAFFIC ACCIDENT OCCURRED IN VIRGINIA, PLAINTIFF’S CHOICE OF FORUM (NEW YORK) SHOULD HAVE BEEN UPHELD; VIRGINIA WITNESSES MAY COME TO NEW YORK VOLUNTARILY OR THE VIRGINIA WITNESSES COULD BE DEPOSED IN VIRGINIA; SUPREME COURT SHOULD NOT HAVE SPECULATED ABOUT THE AVAILABILITY OF VIRGINIA WITNESSES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff’s choice of forum should have been upheld:

Dalaine M. Piesker (plaintiff) was injured in a motor vehicle accident while driving a truck owned by defendant. Plaintiffs are residents of New York, and defendant has an office and transacts business in New York, but the accident occurred in Virginia. Plaintiffs thereafter commenced this negligence action in New York. Supreme Court subsequently granted defendant’s motion to dismiss the complaint on forum non conveniens grounds, reasoning that defendant would be prejudiced by litigating this action in New York because it would be unable to subpoena either the Virginia State Police officers who investigated the accident or the medical providers who treated plaintiff in Virginia immediately following the accident.

“[W]here a plaintiff is a New York resident, a defendant bears the heavy burden of establishing that New York is an inappropriate forum before plaintiff’s choice of forum will be disturbed” … . Defendant failed to meet that heavy burden here. Although “New York courts lack the authority to subpoena out-of-state nonparty witnesses” …, defendant submitted no evidence establishing that the investigating police officers and the emergency medical providers would not testify voluntarily in New York. The court’s speculation to the contrary is unsupported by the record. In any event, both New York and Virginia are parties to the Uniform Interstate Depositions and Discovery Act (see CPLR 3119; Va Code Ann § 8.01-412.10), and defendant could, if necessary, depose the subject witnesses in Virginia and thereafter introduce those depositions at trial in lieu of in-person testimony in New York (see CPLR 3117 [a] [3] [ii]). Piesker v Price Leasing Corp., 2020 NY Slip Op 05648, Fourth Dept 10-9-20

 

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INSUFFICIENT EVIDENCE OF SEXUAL CONTACT; RISK LEVEL REDUCED FROM LEVEL TWO TO ONE (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level from two to one, determined the evidence of sexual contact was not sufficient:

… [T]he record is devoid of any evidence, much less the requisite clear and convincing evidence … , that defendant touched the victim’s “sexual or other intimate parts.” Rather, the record contains only a statement from the victim that defendant “touched her inappropriately.” An “inappropriate” touch, however, encompasses a far broader array of conduct than that classified as “sexual conduct” by section 130.00 (3). …

… [A]lthough defendant was indicted for aggravated sexual battery under Tennessee law—an offense that includes “sexual contact” as an element (see Tenn Code Ann §§ 39-13-501 [6]; 39-13-504 [a])—he was ultimately convicted only of attempted aggravated sexual battery, and it is well established that ” ‘the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred’ ” … . People v Bryant, 2020 NY Slip Op 05646, Fourth Dept 10-9-20

 

WAIVER OF APPEAL OF THE UNDERLYING OFFENSE DOES NOT PRECLUDE APPEAL OF THE SENTENCE IMPOSED FOR A SUBSEQUENT VIOLATION OF PROBATION; SENTENCE DEEMED HARSH AND EXCESSIVE (FOURTH DEPT).

The Fourth Department determined defendant’s sentence was harsh and excessive and noted a waiver of appeal for the underlying offense does not apply to an appeal of the sentence imposed for a subsequent violation of probation:

… [A]s defendant contends and the People correctly concede, even if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass her challenge to the severity of the sentence imposed following her violation of probation … . We agree with defendant that the sentence is unduly harsh and severe. In light of defendant’s young age, minimal criminal history, and prior efforts to address her substance abuse issues, as well as the nonviolent nature of the underlying crimes and the relatively minor infractions for which she was discharged from her treatment program thereby resulting in her violation of probation, we modify the judgment as a matter of discretion in the interest of justice … by reducing the sentence on each count to a determinate term of imprisonment of three years, to be followed by the two years of postrelease supervision imposed by County Court, with the sentences remaining concurrent. People v Griffin, 2020 NY Slip Op 05645, Fourth Dept 10-9-20

 

BURGLARY SECOND COUNT DISMISSED AS A LESSER INCLUSORY COUNT OF THE TWO BURGLARY FIRST COUNTS (FOURTH DEPT).

The Fourth Department dismissed the burglary second count as a lesser inclusory count of the two burglary first counts:

…[C]ount three of the indictment, charging burglary in the second degree, must be dismissed as a lesser inclusory concurrent count of counts one and two, charging burglary in the first degree (see CPL 300.40 [3] [b] …). People v Smith, 2020 NY Slip Op 05643, Fourth Dept 10-9-20

 

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THE UNAMBIGUOUS INSURANCE POLICY DID NOT INCLUDE COVERAGE FOR LOSS OF BUSINESS INCOME AND THE POLICY MUST BE ENFORCED AS WRITTEN (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the coverage unambiguously described in an insurance policy must be enforced as written and there is no coverage for anything, here loss of business income, which is not explicitly described in the contract:

… [T]he insurance contract unambiguously does not include coverage for actual loss of business income. The contract provides coverage “as described and limited” for certain categories of loss “for which a Limit Of Insurance is shown in the Declarations.” Actual loss of business income, however, is neither described nor limited by the declarations. Thus, there is no actual loss of business income coverage “by reason of ‘lack of inclusion’ “… , and “the policy as written could not have covered the liability in question under any circumstances” … . Downstairs Cabaret, Inc. v Wesco Ins. Co., 2020 NY Slip Op 05637, Fourth Dept 10-9-20

 

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