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THE 90-DAY CONTRACTUAL STATUTE OF LIMITATIONS WAS VALID AND ENFORCEABLE; THE BREACH OF CONTRACT CAUSE OF ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the 90-day statute of limitation in the contract applied and the breach of contract cause of action was therefore time-barred. The construction contract required an action to be brought within 90 days of the completion of construction:

… [An] “agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable'” … . ” [T]he period of time within which an action must be brought . . . should be fair and reasonable, in view of the circumstances of each particular case. . . . The circumstances, not the time, must be the determining factor'” … . “Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … .

Here, the [defendant] demonstrated, prima facie, that the time within which to commence this action had expired inasmuch as the plaintiff failed to commence this action within 90 days after May 31, 2011, when construction was indisputably complete … . Stonewall Contr. Corp. v Long Is. Rail Rd. Co., 2020 NY Slip Op 04505, Second Dept 8-12-20

 

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DEFENDANT’S REQUEST FOR THE MISSING WITNESS JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s request for a missing witness jury instruction should have been granted. Defendant was charged with contempt stemming from the violation of a protective order. It was alleged defendant pushed his former girlfriend to the ground in the presence of her date. Her date was subpoenaed by the People and was ready to testify but was not called by the People:

The proponent of a missing witness charge “initially must demonstrate only three things via a prompt request for the charge: (1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case,’ (2) that such witness can be expected to testify favorably to the opposing party,’ and (3) that such party has failed to call’ the witness to testify” … . “The party opposing the charge, in order to defeat the proponent’s initial showing, must either account for the witness’s absence or demonstrate that the charge would not be appropriate” … . “This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not available’, or that the witness is not under the party’s control’ such that he [or she] would not be expected to testify in his or her favor” … . If the party opposing the charge meets its burden to rebut the proponent’s prima facie showing, “the proponent retains the ultimate burden to show that the charge would be appropriate” … .

Here, the defendant met his prima facie burden to show that the complainant’s date was believed to be knowledgeable about a material issue pending in the case and was expected to testify favorably to the People, who had failed to call him to testify. According to the complainant, her date was present during the incident … and was a victim during that incident. The People failed to rebut this prima facie showing … . Contrary to the People’s contention, they failed to establish that the complainant’s date was unavailable as a witness. He appeared in court pursuant to the People’s so-ordered subpoena, and his counsel stated that although he did not wish to be a witness, he was outside the courtroom and was prepared to testify. Further, the People did not establish that the complainant’s date was not under the People’s “control,” such that he would not be expected to testify in their favor, given that he allegedly was on a date with the complainant when the defendant lunged at them, threatened them, and pushed the complainant to the ground. Moreover, the People did not demonstrate that the testimony would have been cumulative. People v Sanchez2020 NY Slip Op 04494, Second Dept 8-12-20

 

DEFENDANT HAS THE RIGHT TO BE PERSONALLY PRESENT AT RESENTENCING ABSENT WAIVER, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined the right to be personally present at sentencing extends to resentencing:

The defendant’s fundamental right to be “personally present at the time sentence is pronounced” (CPL 380.40[1]) extends to resentencing or to the  …amendment of a sentence … . While a defendant convicted of a felony may waive the right to be present at resentencing, this waiver must be expressly made … . A “[w]aiver results from a knowing, voluntary and intelligent decision” … . Here, the defendant was not produced at resentencing and the record is devoid of any indication that he expressly waived his right to be present. Thus, the Supreme Court’s failure to have the defendant produced at the resentencing proceeding violated the defendant’s fundamental right to be present at the time of sentence. People v Rodriguez, 2020 NY Slip Op 04493, Second Dept 8-12-20

 

NOTIFICATION OF AN INTENTION TO CANCEL AN AUTOMOBILE INSURANCE POLICY IF A QUESTIONNAIRE IS NOT SUBMITTED IS NOT A VALID CANCELLATION, THE POLICY REMAINED IN EFFECT DESPITE THE INSURED’S FAILURE TO SUBMIT THE QUESTIONNAIRE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (GEICO’s) purported cancellation of the automobile insurance policy was invalid for two reasons: (1) the notice of cancellation was insufficient; and (2) the reason for the cancellation was not among those allowed by the Insurance Law. GEICO notified the insured (Islam) the policy would be cancelled unless Islam submitted a completed questionnaire by a certain date. Islam did not submit the questionnaire:

“[A] mere expression of a purpose or intention to cancel in the future is not sufficient; that is, it must be one of actual cancellation, not of future conditional cancellation, or of doubtful meaning as to time or purpose” … . The purported cancellation notice reflected a mere intention to cancel in the future if Islam did not provide a completed business use questionnaire.

In any event, cancellation is permitted only upon specified grounds once a covered policy has been in effect for at least 60 days (see Insurance Law § 3425[c][1][A-C]). Insurance Law § 3425(c)(1)(C) requires the “discovery of fraud or material misrepresentation in obtaining the policy or in the presentation of a claim thereunder” to cancel an automobile insurance policy during the required policy period of one year (Insurance Law § 3425[c][1][C]). Here, there is no dispute that the GEICO policy had been in effect for at least 60 days at the time of the purported cancellation. GEICO did not establish that it had discovered any fraud or material misrepresentation committed by Islam; thus, GEICO did not sustain its burden of demonstrating that its notice of cancellation complied with the statutory requirements of Insurance Law § 3425(c)(1) … . Matter of Unitrin Direct Ins. Co. v Barrow, 2020 NY Slip Op 04481, Second Dept 8-12-20

 

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RESPONDENT IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT, NOT STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST), SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined respondent was a dangerous sex offender requiring confinement under the Mental Hygiene Law. Supreme Court had found respondent was entitled to release under strict and intensive supervision and treatment (SIST).

Throughout the entirety of the respondent’s confinement and incarceration, he has never successfully completed any sex offender treatment program. The respondent was violent and “destructive” in group therapy, and repeatedly threatened and assaulted his treatment providers and other staff members. During interviews with treatment providers and evaluators, the respondent threatened to kill the judge who sentenced him; indicated that he derived excitement out of humiliating, tormenting, hunting, and hurting other people; and indicated that he kept a “revenge” list in his mind of people he intended to retaliate against. The respondent also repeatedly feigned psychiatric illnesses that he did not have in an attempt to manipulate the evaluators. Up until the time of the subject dispositional hearing, the respondent continued to make threats and express a desire to kill facility staff members. …

The State presented the testimony of two experts, each of whom opined to a reasonable or high degree of psychological certainty that the respondent is a dangerous sex offender requiring confinement. Both experts diagnosed the respondent with several disorders that affect his emotional, cognitive, or volitional capacity in a manner making it likely that the respondent would engage in recidivist violent sexual offense behavior again. Both experts’ testimony also established that the respondent is presently unable to control his behavior because he has steadfastly refused to meaningfully engage in any treatment program. Each of the experts believed that the respondent’s disorders were treatable, but because the respondent had not successfully completed treatment to resolve his disorders, deviance, offense cycle, or triggers, the disorders remained untreated, and the respondent lacked the ability to control his behavior. Matter of State of New York v Raul L., 2020 NY Slip Op 04479, Second Dept 8-12-20

 

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PLAINTIFF BANK’S ATTORNEY’S FEES IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN AWARDED ABSENT PROOF OF THE ATTORNEY’S EXPERIENCE AND ABILITIES AND THE NATURE OF THE SERVICES RENDERED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the court should not have awarded attorney’s fees to plaintiff bank in this breach of contract/guaranty action because the attorney’s experience and abilities and the nature of the services were not spelled out:

… [T]he Supreme Court should not have awarded the bank attorneys’ fees, costs, and disbursements based solely on the affirmation of legal services provided by the bank’s attorney. “An award of an attorney’s fee pursuant to a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered” … . “In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and .skill required; the difficulty of the questions presented; counsel’s experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation” … . “While a hearing is not required in all circumstances, the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered” … . “There must be a sufficient affidavit of services, detailing the hours reasonably expended . . . and the prevailing hourly rate for similar legal work in the community” … .

Here, the affirmation of services rendered submitted by the bank’s counsel “did not set forth counsel’s experience, ability, and reputation, and failed to detail the prevailing hourly rate for similar legal work in the community” … . Sterling Natl. Bank v Alan B. Brill, P.C., 2020 NY Slip Op 04418, Second Dept 8-5-20

 

DEFENDANT SHOULD HAVE BEEN ALLOWED TO MAKE A PERSONAL STATEMENT BEFORE RESENTENCING, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined defendant should have been allowed to make a sentence before the sentence was pronounced:

At that proceeding, the defendant requested an opportunity to address the court. The court denied the defendant’s request. The defendant appeals, and we reverse.

A defendant is entitled “to make a statement personally in his or her own behalf, and before pronouncing sentence the court must ask the defendant whether he or she wishes to make such a statement” ( CPL 380.50 [1]). “[T]he provisions of CPL 380.50 apply to occasions of resentencing as well as to those of initial sentencing”  … . Here, the defendant was denied that opportunity. Accordingly, we remit the matter … for resentencing to give the defendant an opportunity to make a statement in his behalf … . People v Taylor, 2020 NY Slip Op 04413, Second Dept 8-5-20

 

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BY ENTERING A PLEA AGREEMENT WITH A TESTIFYING CODEFENDANT THE TRIAL JUDGE ABANDONED THE ROLE OF A NEUTRAL ARBITER AND DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial before a different judge, determined defendant was deprived of a fair trial by the judge’s entering a plea agreement with a testifying codefendant:

The defendant …  contends that he was deprived of his due process right to a fair trial by the County Court’s act of entering into a plea agreement with the testifying codefendant. The court’s agreement with the codefendant was made in conjunction with a cooperation agreement reached between the codefendant and the People. The codefendant had been charged with, inter alia, murder in the second degree. The People had promised to recommend a determinate sentence of imprisonment between two and seven years in exchange for the codefendant’s guilty plea to the reduced charge of attempted robbery in the second degree. However, the court promised the codefendant a sentence of only probation in exchange for her testimony against the defendant. Although the defendant failed to preserve this issue for appellate review (see CPL 470.05[2]), we nevertheless reach it in the exercise of our interest of justice jurisdiction.

We agree with the defendant that, under the circumstances here, the County Court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant requiring that individual to testify against defendant in exchange for a more favorable sentence” … . By doing so, “the trial court abandoned the role of a neutral arbiter and assumed the function of an interested party, thereby creating a specter of bias that requires reversal” … . People v Greenspan, 2020 NY Slip Op 04408, Second Dept 8-5-20

 

THE JUDGE DID NOT PRONOUNCE THE LENGTH OF THE TERM OF PROBATION, SENTENCE VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge’s failure to pronounce the term of probation required remittal:

CPL 380.20 requires that courts “must pronounce sentence in every case where a conviction is entered.” “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … . Here, although the parties do not dispute that, as part of the negotiated disposition, the defendant was promised a term of probation of three years, the sentence must be vacated and the matter must be remitted to the Supreme Court, Kings County, for resentencing because the court failed to pronounce the length of the probation term … . People v Childs, 2020 NY Slip Op 04404, Second Dept 8-5-20

 

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ALTHOUGH THE TENANT HAD VIOLATED CERTAIN PROVISIONS OF THE LEASE, THE EVICTION PENALTY SHOCKED THE CONSCIENCE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a dissent, determined the housing authority’s (THA’s) eviction of petitioner was too severe a penalty for her alleged sporadic failure to make timely rent payments, her alleged failure to allow an exterminator to enter the apartment, and her single allegedly “rude and loud” phone conversation with a THA employee. The dissenter argued eviction was an appropriate penalty:

Here, although the petitioner made late rental payments during the subject period, she did eventually pay all of the rent due, as well as the fees that had accrued on the account. Moreover, the record establishes that during the subject period, the amount of the petitioner’s rent fluctuated monthly, with little advance notice, such that her December 2015 rent was nearly three times as much as her September 2015 rent. …

… [T]he two isolated incidents concerning the exterminator and the offensive telephone conversation were not proportionate to the penalty of eviction. First, although the petitioner denied the exterminator entry to her apartment on March 14, 2016, the THA’s evidence otherwise established that the petitioner was the one who had requested treatment for bedbugs, she fully complied with the first treatment, and over several years of biweekly extermination for other pests, she had never denied the exterminator entry … . …

… [T]he petitioner’s single threat of violence occurred in a heated telephone conversation, immediately before the petitioner hung up in frustration and anger. The THA employee to whom the comment was directed testified at the hearing that she found the comment “[e]xtraordinary and extremely rude,” but she did not testify that she was frightened or that she understood the comment to be a genuine threat of violence. …

The penalty imposed is so grave in its impact on the petitioner that it is disproportionate to the misconduct, or the risk of harm to the THA or the public. Under the circumstances of this case, the penalty of termination of the petitioner’s tenancy is so disproportionate to the offenses committed as to be shocking to the judicial conscience as a matter of law … . Matter of Jacobs v Tuckahoe Hous. Auth., 2020 NY Slip Op 04392, Second Dept 8-5-20

 

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