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CRITIERIA FOR SPOLIATION OF EVIDENCE NOT MET.

In a legal malpractice action, plaintiffs alleged their trial attorneys in the personal injury action failed to inform them about a $12 million settlement offer made shortly before the $3.7 million verdict. Defendants-attorneys alleged the plaintiffs were informed of the offer, which was provided in writing, and plaintiffs rejected it. During the deposition of plaintiff-wife (Mrs. Doviak), she was handed the written offer. The plaintiffs argued that handing the offer to Mrs. Doviak constituted spoliation of evidence, because the document could have been tested for fingerprints, and the absence of her fingerprints would have demonstrated she was never provided with the written offer during the trial. The Second Department determined the criteria for spoliation of evidence had not been met:

“The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense” … . “[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” and may, “under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation” … . This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised … .

Here, the record supports the Supreme Court’s conclusion that the plaintiffs failed to demonstrate that the defendants intentionally or negligently destroyed fingerprint evidence which was critical to their case. The plaintiffs failed to demonstrate that they requested that the offer document be tested for fingerprints, or that it be preserved for forensic testing prior to Mrs. Doviak’s deposition, or otherwise informed the defendants of their desire to conduct fingerprint analysis. The plaintiffs’ boilerplate demand during discovery that they be permitted to examine original documents on request does not satisfy this requirement, nor is it reasonable to contend that the defendants should have anticipated the plaintiffs’ desire for forensic testing of the offer document … . Thus, the plaintiffs failed to demonstrate that, in handing the original document to Mrs. Doviak at her deposition, the defendants intentionally or negligently destroyed potential forensic evidence … . In any event, the plaintiffs failed to demonstrate that, by failing to preserve the offer document for forensic testing, the defendants had fatally compromised the plaintiffs’ ability to prove their claims … . Doviak v Finkelstein & Partners, LLP, 2016 NY Slip Op 01636, 2nd Dept 3-9-16

NEGLIGENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/EVIDENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)

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PRINCIPLES OF CONTRACT INTERPRETATION APPLIED TO DETERMINE THE DEDUCTIBLE AMOUNT; SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE INSURER.

The Second Department, reversing Supreme Court, determined the defendant insurer’s interpretation of the policy language was correct and plaintiff’s damages claim was below the deductible. Plaintiff’s facility was damaged during Hurricane Sandy. The damage claim was approximately $2.3 million. The question on appeal was whether the policy language supported the insurer’s position that the applicable deductible was 2% of the total value of the property, which amounted to more than $2.3 million. Or whether the policy language supported the insured’s position that the deductible was 2% of the $2.5 million sublimit for flood damage. The court concluded the insured’s interpretation was not viable because it rendered several other policy provisions superfluous: “In sum, there is only one reasonable interpretation of the relevant deductible provision of the policy. That interpretation supports [the insurer’s] contention that the applicable deductible was $2,494,020, and that the claim submitted by [the insured] did not meet the deductible.” Castle Oil Corp. v ACE Am. Ins. Co., 2016 NY Slip Op 01632, 2nd Dept 3-9-16

 

NSURANCE LAW (PRINCIPLES OF CONTRACT INTERPRETATION APPLIED TO DETERMINE DEDUCTIBLE)/CONTRACT LAW (INSURANCE LAW, PRINCIPLES OF CONTRACT INTERPREATION APPLIED TO DETERMINE DEDUCTIBLE)

REQUEST FOR THE NAME OF THE MOHEL WHO PERFORMED CIRCUMCISION ON AN INFANT WHO BECAME INFECTED WITH HERPES SIMPLEX VIRUS PROPERLY DENIED.

The Second Department determined a reporter’s (Berger’s) request to the NYC Department of Health for the name of a mohel who performed a circumcision on an infant who became infected with herpes simplex virus (HSV-1) was properly denied. A person’s medical history is exempt from disclosure under the Public Officers Law. Revealing the mohel’s name would reveal his medical condition:

As relevant here, Public Officers Law § 87(2)(b) expressly exempts from disclosure records that “if disclosed would constitute an unwarranted invasion of personal privacy” under Public Officers Law § 89(2). Public Officers Law § 89(2)(b)(i) expressly includes “medical . . . histories” within the ambit of “unwarranted invasion of personal privacy” … . In turn, the Court of Appeals has held that “medical history” is ” information that one would reasonably expect to be included as a relevant and material part of a proper medical history'” … .

Here, inherent in Berger’s request for “the name of the mohel who infected an infant with HSV-1 during ritual circumcision in December 2012” is that the mohel is himself infected with, or a carrier of, the HSV-1 virus. Thus, the petitioners’ argument that they are not requesting the mohel’s “medical history,” but only his name, is without merit. Inasmuch as that information is undeniably ” information that one would reasonably expect to be included as a relevant and material part of [the mohel’s] proper medical history'” … , it is “medical history” within the meaning of Public Officers Law § 89(2)(b)(i). The conclusion is thus inescapable that disclosure of the record Berger sought would be an “unwarranted invasion of personal privacy” under Public Officers Law § 89(2)(b)(i) and Public Officers Law § 87(2)(b). Matter of Berger v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 01667, 2nd Dept 3-9-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR NAME OF MOHEL WHO INFECTED INFANT WITH HERPES SIMPLEX VIRUS PROPERLY DENIED)/PUBLIC OFFICERS LAW (FOIL, REQUEST FOR NAME OF MOHEL WHO INFECTED INFANT WITH HERPES SIMPLEX VIRUS PROPERLY DENIED)

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FAMILY COURT SHOULD HAVE GRANTED MOTION FOR FINDINGS TO ENABLE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS).

The Second Department, reversing Family Court, determined mother’s motion for an order making the findings to enable her child to petition for special immigrant juvenile status (SIJS) should have been granted;

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law …, and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence … .

Here, the child is under the age of 21 and unmarried, and has been “legally committed to, or placed under the custody of . . . an individual . . . appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, we find that the record supports the mother’s contention that the child’s reunification with her father is not viable due to abandonment … , and that it would not be in the best interests of the child to be returned to El Salvador … . Matter of Fatima J. A. J. (Ana A. J. S. — Carlos E. A. F.), 2016 NY Slip Op 01673, 2nd Dept 3-9-16

 

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, MOTION FOR REQUISITE FINDINGS SHOULD HAVE BEEN GRANTED)/SPECIAL IMMIGRANT JUVENILE STATUS (MOTION FOR REQUISITE FINDINGS SHOULD HAVE BEEN GRANTED)

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PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT NEAR A STATE PARK.

The Second Department, affirming Supreme Court, determined the petitioner did not have standing to challenge the construction of a temporary asphalt plant near a state forest. The conclusory allegations of pollution of the park by a member of petitioner-organization were not enough:

 

” [I]n land use matters . . . the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large'” … . Whether an organization or association has standing involves the application of the three-pronged test set forth in Society of Plastics Indus. v County of Suffolk (77 NY2d at 775). As pertinent to this appeal, the first prong of that test requires that the organization or association demonstrate that “one or more of its members would have standing to sue” as an individual (id.). An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” (id. at 774) and “the in-fact injury of which [he or she] complains . . . falls within the zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773, …). Here, the petitioner submitted an affidavit from one of its members asserting that he frequently used the area of Stewart State Forest that was closest to the temporary asphalt plant. However, his allegations that the operation of the plant polluted the natural resources of the forest were conclusory and speculative, and therefore, insufficient to establish standing… . Matter of Stewart Park & Reserve Coalition, Inc. v Town of New Windsor Zoning Bd. of Appeals, 2016 NY Slip Op 01685, 2nd Dept 3-9-16

 

ENVIRONMENTAL LAW (PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)/LAND USE (PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)/STANDING (ENVIRONMENTAL LAW, LAND USE, PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)

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COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION IN A DEFAMATIOIN ACTION; MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department determined defendants' oral motion to set aside the verdict in a defamation case should have been granted. Plaintiff alleged statements made by defendants (husband and wife) caused specified pecuniary loss. Because the defendants are spouses, communication between them did not constitute publication. The plaintiff was unable to demonstrate any statements made to third parties caused special harm:

“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … .

Applying this standard here, we conclude that there was no valid line of reasoning and permissible inferences which could have led the jury to find that the plaintiff established his cause of action alleging defamation. “The elements of a cause of action [to recover damages] for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . Here, because it is undisputed that the defendants are spouses, the communications between the defendants do not constitute publication … . … [T]o the extent that the plaintiff's defamation claim alleged that [defendants] communicated the [statement] to third parties, the plaintiff failed to prove that he suffered special harm, i.e., the loss of something having economic or pecuniary value, as a result of those statements .. . Gaccione v Scarpinato, 2016 NY Slip Op 01640, 2nd Dept 3-9-16

DEFAMATION (COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT IN DEFAMATION ACTION SHOULD HAVE BEEN GRANTED)/VERDICT, MOTION TO SET ASIDE (DEFAMATION ACTION, MOTION TO SET ASIDE PLAINTIFF'S VERDICT SHOULD HAVE BEEN GRANTED)

ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE IS NOT A LESSER-INCLUDED OFFENSE OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE; SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE.

The Second Department reversed defendant’s conviction (by guilty plea) because the Superior Court Information (SCI) to which defendant pled did not allege a lesser-included offense of an offense charged in the original felony complaint. Attempted criminal possession of a controlled substance in the fourth degree is not a lesser-included offense of criminal possession of a controlled substance in the fourth degree:

The single count in the SCI was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint … . Attempted criminal possession of a controlled substance in the fourth degree under Penal Law §§ 110.00 and 220.09(1) is not a lesser-included offense of criminal possession of a controlled substance in the fourth degree under Penal Law § 220.09(3), because the former offense contains the element “narcotic drug” (Penal Law § 220.00[7]) that is not an element of the latter offense and, therefore, it is possible to commit the greater offense “without concomitantly committing, by the same conduct,” the lesser offense (CPL 1.20[37]…). Thus, the SCI upon which the defendant’s plea was based did not “include at least one offense that was contained in the felony complaint” or a lesser-included offense of an offense charged in the felony complaint … , and the SCI was jurisdictionally defective … . This defect survives the defendant’s failure to raise this claim in the County Court, his plea of guilty, and his waiver of the right to appeal … . People v Chacko, 2016 NY Slip Op 01689, 2nd Dept 3-9-16

CRIMINAL LAW (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)/SUPERIOR COURT INFORMATION (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)/CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE (ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE NOT A LESSER-INCLUDED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE, SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE)

QUESTION OF FACT RAISED WHETHER DECEDENT REVOKED A LOST WILL.

The Second Department determined summary judgment should not have been granted in favor of objectants to the probate of a will. The original will could not be found, but copies were in a folder decedent told his home aide about. There was, therefore, a question of fact raised about whether the will had been revoked:

 

When a will previously executed and in the testator's possession cannot be found after the death of the testator, a presumption arises that the will was revoked by the testator … . This legal presumption may be overcome, and the lost will admitted to probate, if the will's proponent establishes that the will was not revoked by the testator during his or her lifetime (see SCPA 1407[1]…). * * *

… [E]vidence that, shortly before his death, the decedent showed the blue binder to the home health aide and stated that it contained his will and that it was kept in a certain location, which the decedent was thereafter unable to access due to his declining health, and where several copies of the will were later found after his death, was sufficient to raise an issue of fact regarding the presumption of revocation of his will, thereby precluding an award of summary judgment to the objectants on the issue of revocation … . Matter of Marotta, 2016 NY Slip Op 01491, 2nd Dept 3-2-16

TRUSTS AND ESTATES (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)/WILLS (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)

ALLEGED ZONING VIOLATION DID NOT AUTOMATICALLY WARRANT REMOVAL OF TAX-EXEMPT STATUS; TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined an alleged zoning violation, for which plaintiff property owner had never been cited, did not justify automatic removal of plaintiff's tax-exempt status. Therefore, defendant-town's motion for summary judgment should not have been granted. The property had been tax-exempt for years as low-income property. The alleged zoning violation, i.e. that the plaintiff had more than two residential apartments, was not incompatible with the tax-exempt use. Therefore, the alleged zoning violation could not justify automatic removal of the tax-exempt status:

 

… [E]ven assuming that a zoning violation had been sufficiently established, the defendants have failed to articulate why such a violation, under the particular circumstances presented, should result in the loss of the plaintiff's tax exemption. Not all violations of law automatically result in the loss of a tax exemption … . “The concern of the taxing authority is not with the observance or non-observance by plaintiff of regulatory provisions relating to a specific building, but to the use to which the real property as an entity is or is intended to be devoted” … .

This is not a case in which the applicable zoning regulation is incompatible with the occupant's tax-exempt use … . In such cases, the rationale for denying the tax exemption is simple and clear, as compliance with both the tax-exempt use and the zoning regulation is impossible. Here, by contrast, the tax-exempt use of providing residential housing to low-income tenants is consonant with the property's permitted use as a two-family dwelling. Under these circumstances, the defendants have failed to establish, prima facie, that the nature of the alleged violation (i.e., that the plaintiff had more than two residential apartments) can serve as a valid legal basis for denying the property tax exemption … . Community Humanitarian Assn., Inc. v Town of Ramapo, 2016 NY Slip Op 01458, 2nd Dept 3-2-16

REAL PROPERTY TAX LAW (ALLEGED ZONING VIOLATION DID NOT WARRANT AUTOMATIC REMOVAL OF TAX-EXEMPT STATUS)/ZONING (ALLEGED ZONING VIOLATION DID NOT WARRANT AUTOMATIC REMOVAL OF TAX-EXEMPT STATUS)/TAX-EXEMPT STATUS (REAL PROPERTY, ALLEGED ZONING VIOLATION DID NOT WARRANT AUTOMATIC REMOVAL OF TAX-EXEMPT STATUS)

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ACCIDENT DIAGRAM IN POLICE REPORT WAS NOT BASED ON OFFICER’S FIRST-HAND KNOWLEDGE; REPORT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; NEW TRIAL ORDERED.

The Second Department determined a new trial was necessary in a pedestrian-accident case because the police report (admitted in evidence included) included a diagram of the accident scene which was not based on the police officer's personal observation:

 

Information in a police accident report is “admissible as a business record so long as the report is made based upon the officer's personal observations and while carrying out police duties” … . Conversely, information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under some other hearsay exception … . Here, the diagram contained in the police accident report was not derived from the personal observations of the police officer, who did not witness the subject accident … . In addition, there was insufficient evidence as to the source of the information used to prepare the diagram, whether that person was under a business duty to supply it, or whether some other hearsay exception would render the diagram admissible. The diagram therefore should not have been admitted … . Wynn v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 01484, 2nd Dept 3-2-16

NEGLIGENCE (ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/EVIDENCE (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/HEEARSAY (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)

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