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PLAINTIFF NURSING HOME ALLEGED DEFENDANT “THIRD-PARTY” BREACHED OBLIGATIONS IMPOSED BY THE NURSING HOME ADMISSION AGREEMENT CONCERNING PAYMENT OF THE COSTS INCURRED BY THE RESIDENT; THE NURSING HOME’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Miller, determined plaintiff nursing home’s motion for summary judgment in this breach of contract action should not have been granted and defendant’s motion for summary judgment dismissing the action for “breach of a contractual duty to cooperate” should have been granted. The contract at issue is the nursing home’s admission agreement, which includes obligations imposed upon defendant “third-party” in connection with paying for the costs incurred by the resident of the nursing home. The opinion is fact-specific and analyzes the breach of contract allegations as they relate to specific provisions in the admission agreement. The analysis is too detailed to fairly summarize here. The court described the salient issues as follows:

Under state and federal law, a nursing facility is prohibited from requiring a third party to guarantee the payment of a resident as a condition of the resident’s admission to the facility. As this case illustrates, however, a nursing facility is permitted to require a third party to undertake other kinds of contractual obligations, and a nursing facility may recover damages that were proximately caused by a failure of the third party to fulfil those obligations. Where it is alleged that a variety of different contractual obligations have been breached, each such theory of liability must be proved, defended, and analyzed independently. Where an admissions agreement containing pages of third-party obligations is both a requirement for admission and aggressively enforced, the fine legal distinctions between an unlawful third party guarantee and a lawful agreement laden with additional affirmative obligations may have little practical significance for the third party. This is especially true where, as here, the nursing facility’s litigation is directed solely at the third party, and recovery is not sought from the estate of the actual resident of the nursing facility. Wedgewood Care Ctr., Inc. v Kravitz, 2021 NY Slip Op 04731, Second Dept 8-18-21​

 

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THE REFEREE DID NOT HAVE THE AUTHORITY TO PRECLUDE DEFENDANT FROM PRESENTING EVIDENCE AS AN APPARENT SANCTION FOR DEFENDANT’S FAILURE TO APPEAR; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this matrimonial matter should not have been confirmed because the referee exceeded her authority by ruling the defendant could not present any evidence, an apparent sanction for defendant’s failure to appear:

“A referee derives his or her authority from an order of reference by the court, and the scope of the authority is defined by the order of reference” (… see CPLR 4311). “A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction” … . Where, as here, the parties did not consent to the determination of any issues by the referee, and the order of reference directed the referee to hear and report (see CPLR 4317 [a]), “the referee had the power only to hear and report his [or her] findings”… .

Here, the Referee exceeded her authority to hear and report her findings based upon the evidence presented at trial by making a determination to preclude the defendant from presenting a case … . Pursuant to CPLR 4201, a referee assigned to hear and report “shall have the power to issue subpoenas, to administer oaths and to direct the parties to engage in and permit such disclosure proceedings as will expedite the disposition of the issues.” However, neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence. Pulver v Pulver, 2021 NY Slip Op 04727, Second Dept 8-18-21

 

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THE JUDGE’S LAW CLERK WAS A DA WHO HAD WORKED ON DEFENDANT’S CASE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge should have recused himself from the sentencing because his law clerk was a former DA who had worked on the case. The issue was not preserved but was considered in the interest of justice:

The defendant’s contention that the trial justice should have recused himself from presiding over the sentencing proceeding, on the ground that the justice’s law clerk was a former Queens County Assistant District Attorney who, in that capacity, had worked on the early stages of this case, is unpreserved for appellate review. We nevertheless reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.05[2]). For the reasons discussed in our decision and order on an appeal by the defendant’s codefendant (People v Hymes, 193 AD3d 975), the trial justice should have recused himself from presiding over the sentencing proceeding (see People v Suazo, 120 AD3d 1270).

Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Queens County, for resentencing before a different Justice. People v McPhee, 2021 NY Slip Op 04723, Second Dept 8-18-21

 

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MURDER SECOND COUNTS WERE INCLUSORY CONCURRENT COUNTS OF MURDER FIRST AND SHOULD HAVE BEEN DISMISSED; FORMER APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder, and the former appellate counsel was ineffective in failing to raise that issue:

… [F]ormer appellate counsel was ineffective for failing to contend on appeal that … the defendant’s convictions of murder in the second degree, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed, because those charges are inclusory concurrent counts of the conviction of murder in the first degree … . People v Davis, 2021 NY Slip Op 04720, Second Dept 8-18-21

 

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THE DENIAL OF A MOTION TO SEAL A CRIMINAL CONVICTION IS CIVIL IN NATURE AND CAN BE APPEALED AS A MATTER OF RIGHT; HERE THE DEFENDANT’S MOTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing County Court, determined defendant could appeal the denial of his motion to seal his conviction record because the sealing procedure is civil in nature. In addition, the Second Department held defendant was entitled to a hearing on the motion:

Although a motion pursuant to CPL 160.59 relates to a criminal matter, “it does not affect the criminal judgment itself, but only a collateral aspect of it—namely, the sealing of the court record,” and, therefore, is civil in nature … . As such, the defendant is entitled to appeal as of right from the subject order denying the 2020 motion, which was made upon notice to the People (see CPLR 5701[a][2][v] …). * * *

By using the word “shall,” the Legislature clearly and unambiguously provided that when the motion is not subject to mandatory denial under CPL 160.59(3) and the district attorney opposes the motion, the motion court does not have the discretion to dispense with the hearing requirement, even where, as here, the court had held a hearing on the defendant’s prior CPL 160.59 motion ,,, , Further, CPL 160.59 is a remedial statute, and remedial statutes should be interpreted broadly to accomplish their goals … . People v Bugge, 2021 NY Slip Op 04718, Second Dept 8-18-21

 

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THE JUVENILE DELINQUENCY ADJUDICATION WAS AFFIRMED; TWO DISSENTERS ARGUED THE PROOF THE JUVENILE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS WAS INSUFFICIENT (SECOND DEPT).

Although the Second Department affirmed the juvenile delinquency adjudication, two dissenters argued the presentment agency did not prove the juvenile was capable of knowingly, voluntarily and intelligently waiving his Miranda rights. The juvenile’s expert provided evidence of the juvenile’s limited intellectual functioning:

From the dissent:

The expert’s uncontradicted opinion was that the appellant had “fundamental problems” in understanding and comprehending Miranda rights. Specifically, the appellant believed that he had to waive his right to remain silent in order to find out what the detectives were questioning him about. The appellant did not understand what it meant for a statement to be “used against him.” Further, he did not understand the role of an attorney in the context of an interrogation.

Given the appellant’s young age, low IQ scores, and limited intellectual functioning, there are serious doubts about the appellant’s ability to knowingly and intelligently waive his Miranda rights under the circumstances … . Notably, the Presentment Agency did not introduce any expert testimony contradicting the conclusions reached by the appellant’s expert forensic psychologist … . The conclusions of the appellant’s expert were confirmed by the appellant’s educational records showing that he had been selected for an individualized education plan (hereinafter IEP) and had consistently been evaluated as having intellectual disabilities, including a low IQ with reading, listening, and comprehension difficulties. Matter of Tyler L., 2021 NY Slip Op 04713, Second Dept 8-18-21

 

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THE RELEASE WAS VALID EVEN THOUGH PLAINTIFF DID NOT UNDERSTAND ENGLISH; CPLR 2101, WHICH REQUIRES DOCUMENTS IN A FOREIGN LANGUAGE WHICH ARE FILED OR SERVED BE ACCOMPANIED BY AN ENGLISH TRANSLATION, DOES NOT APPLY BECAUSE THE RELEASE WAS IN ENGLISH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release executed by plaintiff with respect to defendant M & I was valid, despite the fact that plaintiff did not understand English:

A person who does not understand the English language is not automatically excused from complying with the terms of a signed agreement, since such person must make a reasonable effort to have the agreement made clear to him or her … . Here, the deposition testimony of the injured plaintiff … demonstrates that the terms of the release were explained to the injured plaintiff before he executed the document … . Furthermore, contrary to the plaintiffs’ contention, the Supreme Court erred in determining that CPLR 2101(b) precluded consideration of the release. That statute provides that papers to be “served or filed shall be in the English language” and “[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate” (CPLR 2101[b]). Here, the release was written in English. Ivasyuk v Raglan, 2021 NY Slip Op 04706, Second Dept 8-18-21

 

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AN INSPECTION OF THE BLACKTOP FIVE TO SEVEN WEEKS BEFORE PLAINTIFF ALLEGEDLY STEPPED IN A HOLE AND FELL DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case did not demonstrate it did not have constructive notice of the hole in the blacktop where plaintiff allegedly fell:

“To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendants submitted evidence that a paving contractor inspected the parking lot prior to the plaintiff’s accident, and found no defective conditions in the area of the plaintiff’s accident. However, that inspection occurred approximately five to seven weeks prior to the plaintiff’s accident … . Moreover, although the defendants’ property manager submitted an affidavit in which she attested that she did not find any potholes or pothole-type conditions during her inspection of the area a few days after the plaintiff’s accident, her contemporaneous notes and her deposition testimony acknowledged that she found, and had repaired, three “tiny holes” or “small spots by each curb curve” in the subject parking lot. Hughes v Tower Crestwood 2015, LLC, 2021 NY Slip Op 04705, Second Dept 8-18-21

 

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IN A SIDEWALK SLIP AND FALL CASE, WHERE THE VILLAGE CODE REQUIRES WRITTEN NOTICE OF THE DEFECT BE GIVEN TO THE VILLAGE CLERK AS A CONDITION PRECEDENT TO LIABILITY, PROOF THAT WRITTEN NOTICE WAS GIVEN TO SOME OTHER VILLAGE OFFICER OR ENTITY WILL NOT DEFEAT THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this sidewalk slip and fall case should have been granted. The village code provided the village would not be liable unless written notice of the condition had been given to the village clerk. Here the notice was apparently given to another village officer or body:

Village Code § 59-l provides that “[n]o civil actions shall be maintained against the Village for damages or injuries to persons or property sustained” from a defect in Village property “unless written notice” of the defect “was actually given to the Village Clerk and there was a failure or neglect within a reasonable time after the receipt of such written notice to repair or remove the defect.” Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition pursuant to the terms of the prior written notice law, or an exception to the prior written notice requirement applies … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, an affidavit from the Village Clerk, who averred that she had conducted a search of the records contained in the Office of the Village Clerk and that there was no prior written notice of the alleged defective condition that caused the injured plaintiff’s accident.

In opposition, the plaintiffs failed to raised a triable issue of fact as to whether the Village Clerk had received prior written notice of the alleged defective condition. Evidence that written notice may have been provided to another Village officer or body did not give rise to a triable issue of fact, since Village Code § 59-l requires that written notice be actually given to the Village Clerk … . Hiller v Village of Warwick, 21 NY Slip Op 04704, Second Dept 8-18-21

 

SUPREME COURT SHOULD NOT HAVE CONSIDERED DEFENDANT’S ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS; DEFENDANT ORIGINALLY MOVED FOR SUMMARY JUDGMENT AND THEN ARGUED IN REPLY PAPERS IT HAD INTENDED TO MAKE A MOTION TO DISMISS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant P & C Merrick’s motion to dismiss the complaint, asserted for the first time in reply papers, should not have been considered by the court. P & C Merrick had initially moved for summary judgment:

The Supreme Court erred in considering P & C Merrick’s contention, raised for the first time in reply, that it intended to move pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it rather than moving for summary judgment dismissing the complaint insofar as asserted against it. There is no indication in the record that the plaintiff had an opportunity to respond to P & C Merrick’s reply and to submit papers in surreply … . Thus, the court should not have addressed the arguments raised by P & C Merrick for the first time in its reply papers … . As these new legal arguments were the basis for directing dismissal of the causes of action alleging specific performance and breach of contract, the plaintiff was prejudiced, and the Supreme Court erred in directing dismissal of those causes of action. Grocery Leasing Corp. v P&C Merrick Realty Co., LLC, 2021 NY Slip Op 04701, Second Dept 8-18-21

 

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