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DEFENDANT’S DISCARDING A BAG OF MARIJUANA AS HE WAS BEING PURSUED BY POLICE FOR AN OPEN-CONTAINER VIOLATION CONSTITUTED ATTEMPTED TAMPERING WITH PHYSICAL EVIDENCE (SECOND DEPT).

The Second Department determined that defendant’s discarding a bag of marijuana as he was being pursued by a police officer for violating the city’s open-container law constituted attempted tampering with physical evidence, not tampering with physical evidence:

Here, the charge of tampering with physical evidence was based on the defendant’s act of discarding the plastic bag containing marijuana as he was being pursued by Officer Scuadroni for violating the City’s open-container law. Contrary to the People’s contention, the defendant’s act of discarding the bag did not constitute an act of concealment within the meaning of Penal Law § 215.40(2). Nevertheless, since the defendant “engage[d] in conduct that tends to effect, and comes dangerously near to accomplishing, an act of concealment intended to suppress the physical evidence” … , there is legally sufficient evidence to sustain a conviction of attempted tampering with physical evidence (see Penal Law §§ 110.00, 215.40[2 …). Accordingly, we reduce the defendant’s conviction of tampering with physical evidence to attempted tampering with physical evidence … . People v Zachary, 2020 NY Slip Op 00165, Second Dept 1-8-20

 

SENTENCE DEEMED HARSH AND EXCESSIVE; REDUCED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department reduced the defendant’s sentence, noting it was defendant’s first conviction, her strong family and community ties, her long employment history and her mental health history. “The defendant was convicted of two counts each of rape in the third degree, criminal sexual act in the third degree, and endangering the welfare of a child arising out of two separate incidents wherein the defendant, who was a paraprofessional at a school which the 16½-year-old victim attended, took the victim to a hotel and had sexual intercourse and oral sex with him:”

Appeal by the defendant from a judgment … convicting her of rape in the third degree (two counts), criminal sexual act in the third degree (two counts), and endangering the welfare of a child (two counts), after a nonjury trial, and sentencing her to determinate terms of imprisonment of 3 years on each of the counts of rape in the third degree (counts 1 and 4) and criminal sexual act in the third degree (counts 2 and 5), to be followed by a period of postrelease supervision of 10 years, and a determinate term of imprisonment of 1 year on each of the counts of endangering the welfare of a child (counts 3 and 6), with the sentences imposed on counts 1, 2, and 3 to run concurrently with each other, and the sentences imposed on counts 4, 5, and 6 to run concurrently with each other and consecutively to the sentences imposed on counts 1, 2, and 3. * * *

The sentence imposed, which is at the upper end of the legal sentencing range, is harsh and excessive … . Accordingly, exercising our interest of justice jurisdiction, we modify the sentence to the extent indicated herein … . People v Thompson, 2020 NY Slip Op 00164, Second Dept 1-8-20

 

JUROR SHOULD NOT HAVE BEEN REPLACED WITH AN ALTERNATE; NO SHOWING JUROR WAS ‘UNAVAILABLE’ WITHIN THE MEANING OF CPL 270.35; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have discharged a juror and replaced her with an alternate after the proof had closed and before summations. The juror was not “unavailable” within the meaning of Criminal Procedure Law (CPL) 270.35:

… [A]fter both sides had rested but before summations, the Supreme Court, over the defendant’s objection, excused juror No. 10 and replaced her with an alternate on the basis that juror No. 10 had to travel to Maryland for an evening work obligation the next day, which was a Friday. The day after the alternate was substituted, the jury found the defendant guilty of assault in the first degree and criminal possession of a weapon in the fourth degree. …

… [T]he defendant’s statutory and constitutional rights were violated when, over the defendant’s objection, the court excused Juror No. 10 and substituted an alternate juror. The record does not demonstrate that Juror No. 10 was unavailable as that term is used in CPL 270.35 … . Juror No. 10’s work obligation did not render her unavailable for jury service, as her own convenience or potential financial hardship are insufficient to render her unavailable under CPL 270.35 … . People v Alleyne, 2020 NY Slip Op 00154, Second Dept 1-8-20

 

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DEFENDANT SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PROTRUDING SCREW WHICH LACERATED PLAINTIFF-STUDENT’S LEG; THE SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant school did not demonstrate it lacked constructive notice of the protruding screw which allegedly lacerated plaintiff-student’s leg as she walked by bleachers. Therefore the school’s motion for summary judgment should not have been granted:

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition … . In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it … . To meet its initial burden on the issue of lack of constructive notice, the moving party is required to offer some evidence as to when the accident site was last inspected or maintained prior to the plaintiff’s accident  … .

Here, in support of their motion, the defendants submitted, inter alia, the affidavit of the School District’s Director of Facilities, Roald Broas, who averred, in relevant part, that the School District did not maintain the subject bleachers, but instead “hire[d] subcontractors to perform inspections and maintenance of the bleachers.” Broas’s conclusory affidavit—which failed to identify the subcontractor who performed the last inspection or maintenance on the bleachers, as well as when and how such inspection or maintenance was performed—was insufficient to establish, prima facie, the School District’s lack of constructive notice of the alleged dangerous condition … . Kelly v Roy C. Ketcham High Sch., 2020 NY Slip Op 00111, Second Dept 1-8-20

 

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PLAINTIFF BANK’S PRIOR FORECLOSURE ACTION WAS DISMISSED FOR FAILURE TO DEMONSTRATE STANDING; RES JUDICATA DOES NOT PRECLUDE THE INSTANT FORECLOSURE ACTION BECAUSE THE PRIOR ACTION WAS NOT DISMISSED ON THE MERITS; COLLATERAL ESTOPPEL DOES NOT PRECLUDE THE INSTANT ACTION BECAUSE THE STANDING ISSUE IS NOT THE SAME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the prior dismissal of plaintiff bank’s foreclosure action for failure to demonstrate standing did not, under the doctrines of res judicata or collateral estoppel, preclude the present action. The prior dismissal was not on the merits and the standing issue in the current procedure is not the same as in the prior proceeding:

Here, as the prior action was dismissed for lack of standing, without reaching the merits of the foreclosure claim itself, the defendants failed to demonstrate that “a judgment on the merits exists between the same parties involving the same subject matter” … . “To accord res judicata effect to the [judgment in the prior action] would bar a court from ever addressing the merits of plaintiff’s mortgage foreclosure claim, even if plaintiff became able to demonstrate its standing to sue, and there is nothing in the record to suggest . . . [that there are] exceptional circumstances or an unreasonable neglect to prosecute that would warrant such an extreme sanction” … . …

… [T]the defendants failed to demonstrate that the issue of whether the plaintiff has standing under the circumstances of this action was identical to the issue adjudicated in the prior action … . In the prior action, the plaintiff failed to establish that it had possession of the original endorsed note at the time that action was commenced, while in the present action, the issue is whether the plaintiff had possession of the original endorsed note at the time this action was commenced … . HSBC Bank USA, N.A. v Pantel, 2020 NY Slip Op 00109, Second Dept 1-8-20

 

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THE BANK DID NOT PROVE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted. Plaintiff bank did not submit sufficient proof of standing to bring the action:

Where, as here, a plaintiff’s standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief … . A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note … . Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident … . Here, the plaintiff failed to meet its burden to establish, prima facie, its entitlement to summary judgment because the affidavit submitted in support of the motion was insufficient to establish standing … . Deutsche Bank Natl. Trust Co. v Conrado, 2020 NY Slip Op 00103, Second Dept 1-8-20

 

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PLAINTIFFS’ ACTION ALLEGING BREACH OF AN ORAL CONTRACT REGARDING REPAYMENT OF A LOAN SECURED BY A NOTE AND MORTGAGE SHOULD HAVE BEEN DISMISSED AS BARRED BY THE STATUTE OF FRAUDS; THE FRAUD AND UNJUST ENRICHMENT CAUSES OF ACTION MUST BE DISMISSED AS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ action alleging breach of an alleged oral contract concerning the repayment of a loan secured by a note an mortgage should have been dismissed as barred by the statute of frauds. The fraud and unjust enrichment causes of action must also be dismissed as duplicative of the breach of contract cause of action:

The complaint alleged that contemporaneously with executing the note and mortgage, the plaintiffs and the defendant entered into an oral agreement providing, inter alia, that in exchange for assigning a contract to purchase certain real property to the defendant, the plaintiffs would be responsible for paying only the interest on the loan. The complaint, which asserted causes of action sounding in breach of contract, fraud, and unjust enrichment, sought, among other things, recovery of the settlement amount paid by the plaintiffs in the foreclosure action, less the amount of interest allegedly due pursuant to the oral agreement. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court denied the motion, and the defendant appeals.

Accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible inference, dismissal of the breach of contract cause of action should have been granted, since enforcement of the alleged oral agreement, ostensibly to modify the note and mortgage, is barred by the statute of frauds (see General Obligations Law §§ 5-703[1]; 5-1103 … ). Dismissal of the causes of action alleging fraud and unjust enrichment should also have been granted as they are duplicative of the unenforceable contractual cause of action and thus constitute an impermissible attempt to circumvent the statute of frauds … . Botanical Realty Assoc. Urban Renewal, LLC v Gluck, 2020 NY Slip Op 00099, Second Dept 1-8-20

 

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FATHER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THIS CHILD SUPPORT PROCEEDING RESULTING IN HIS COMMITMENT TO THREE MONTHS IN JAIL; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not receive effective assistance of counsel in this child support proceeding which committed father to three months in jail for violation of the child support order:

We agree with the father that he was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of an order of child support. In support proceedings such as this one, “the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard”… . Here, the father’s defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Notably, despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father’s medical records or provide the court with any relevant financial documentation. The father’s counsel also failed to call any witnesses to testify as to the effects of the father’s back injury, subpoena his treating physician, or obtain a medical affidavit. The Family Court made specific reference to the lack of any credible medical testimony, financial disclosure affidavit, tax returns, or proof of a job search in its determination that the father failed to refute the mother’s prima facie showing of willfulness. Counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father’s contention constituted a failure to meaningfully represent the father, and he is entitled to a new hearing on the violation petition … . Matter of Miller v DiPalma, 2020 NY Slip Op 00140, Second Dept 1-8-20

 

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PLAINTIFFS WERE NOT SIGNATORIES TO CONTRACTS WHICH REQUIRED ARBITRATION OF WAGE-UNDERPAYMENT ALLEGATIONS AND PLAINTIFFS DID NOT EXPLOIT THE BENEFITS OF THE CONTRACTS; THEREFORE PLAINTIFFS COULD NOT BE COMPELLED TO ARBITRATE (SECOND DEPT).

The Second Department determined the plaintiffs in this putative class action alleging wage-underpayment in violation of Labor Law article 6 could not be compelled to arbitrate. Plaintiffs were not parties to the contracts with defendants which compelled arbitration and did not seek to exploit the benefits of those contracts:

… [U]nder limited circumstances nonsignatories may be compelled to arbitrate” … . Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory “knowingly exploits” the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement … . “The benefits must be direct, and the party seeking to compel arbitration must demonstrate that the party seeking to avoid arbitration relies on the terms of the agreement containing the arbitration provision in pursuing its claim” … . Where the benefits are merely “indirect,” a nonsignatory cannot be compelled to arbitrate a claim … . “A benefit is indirect where the nonsignatory exploits the contractual relation of the parties, but not the agreement itself” … .

Here, contrary to the defendants’ contention, the plaintiffs should not be compelled to arbitrate based upon the agreements. The record does not establish that the plaintiffs were even aware of the existence of the agreements or that they knowingly exploited the benefits of the agreements … . Arboleda v White Glove Enter. Corp., 2020 NY Slip Op 00098, Second Dept 1-8-20

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SUPPORT MAGISTRATE HAD THE AUTHORITY TO VACATE MAINTENANCE ARREARS; THE FORMER HUSBAND DEMONSTRATED THE FORMER WIFE WAIVED HER RIGHT TO MAINTENANCE PAYMENTS 16 YEARS BEFORE THE PETITION WAS BROUGHT (SECOND DEPT).

The Second Department, reversing Family Court, determined the former husband’s (appellant’s) objection to the support magistrate’s order that appellant pay maintenance arrears should have been granted. The support magistrate had terminated the former wife’s (respondent’s) right to maintenance payments but held she did not have the authority to vacate the arrears. The Second Department held respondent had waiver her right to maintenance payments years before and appellant was not obligated to pay the arrears:

… [P]ursuant to Domestic Relations Law § 236(B)(9)(b), a prior judgment or order as to maintenance may be modified or annulled after the accrual of such arrears where “the defaulting party shows good cause for failure to make an application for relief from the judgment or order directing payment prior to the accrual of such arrears” … . …

The appellant demonstrated that in June 2001, the respondent waived her right to receive maintenance payments … . “A valid waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable'” … . “It may arise by either an express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage” … . Here, the evidence adduced at the hearing demonstrated that after the appellant stopped paying maintenance beginning in June 2001 pursuant to the parties’ alleged oral agreement, the respondent did not make any written demands or otherwise move to enforce the maintenance provision of the parties’ judgment of divorce for a period of more than 16 years. Although a waiver “is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” … , the respondent’s conduct evinced an intent by her to abandon her right to maintenance payments and supported the appellant’s claim that she had orally agreed to terminate his maintenance obligation in June 2001 … . Matter of Makris v Makris, 2020 NY Slip Op 00139, Second Dept 1-8-20

 

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