You are here: / Second Department

Tag Archive for: Second Department

,

Criteria for Amending a Complaint to Replace “John Does” with Named Defendants Explained

Plaintiff alleged he was injured when tackled by police officers. The officers were named in the complaint as “john does.” After the statute of limitations had run, plaintiff sought to amend the complaint to name the officers involved. The Second Department determined the motion was properly denied because plaintiff did not exercise due diligence in discovering the officers’ names:

In order to employ the procedural “Jane Doe” or “John Doe” mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired … . “[W]hen an originally-named defendant and an unknown Jane Doe’ [or John Doe’] party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the relation-back’ doctrine of CPLR 203(f), based upon postlimitations disclosure of the unknown party’s identity” … . The moving party seeking to apply the relation-back doctrine to a later-identified “Jane Doe” or “John Doe” defendant has the burden, inter alia, of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations … .

Here, the plaintiffs failed to establish that they exercised due diligence to discover the identity of the John Doe defendants prior to the expiration of the statute of limitations. There is no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests … . Moreover, there is no indication that the plaintiffs sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run … . Although the plaintiffs maintain that, due to a pending investigation by the NYPD’s Internal Affairs Bureau, they did not learn the identities of the subject officers until the injured plaintiff’s criminal trial, the plaintiffs’ submissions failed to show that they diligently sought to gain access to the records contained in the file for the criminal proceeding prior to the expiration of the statute of limitations. Holmes v City of New York, 2015 NY Slip Op 07819, 2nd Dept 10-28-15

 

, , ,

Non-Constitutional Appellate Issues Re: Refusal to Submit to a Chemical Test (DWI) Do Not Survive a Guilty Plea

The Second Department, in a full-fledged opinion by Justice Leventhal, determined defendant, by pleading guilty, had forfeited his right to appellate review of (non-constitutional) rulings about the admissibility of his refusal to submit to a chemical test (DWI) after his involvement in a car accident. The court explained why some appellate issues survive a guilty plea and some don’t:

The Court of Appeals has repeatedly observed that “a plea of guilty generally marks the end of a criminal case, not a gateway to further litigation'” … . A guilty plea signals the defendant’s intention not to litigate the issue of his or her guilt, “and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury” … . A guilty plea not only encompasses a waiver of the specific rights attached to a trial, but also “effects a forfeiture of the right to renew many arguments made before the plea” … . “This is so because a defendant’s conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial'” … . The forfeiture occasioned by a guilty plea extends to a variety of claims, including those premised upon a failure to provide CPL 710.30 notice … , the statutory right to a speedy trial … , the exercise of alleged discriminatory peremptory challenges … , and adverse rulings on Sandoval and Ventimiglia/Molineux applications … .

However, not every claim is forfeited by a guilty plea. The issues that survive a valid guilty plea generally relate either to jurisdictional matters, such as an insufficient accusatory instrument, or to rights of a constitutional dimension that go to the heart of the criminal justice process … . “The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not” … . Examples of rights of constitutional dimension which are not forfeited by a guilty plea include the constitutional right to a speedy trial, the protection against double jeopardy, and the competency of the defendant to stand trial … .

Among the limited group of issues that survive a valid guilty plea and may be raised on a subsequent appeal are those relating to the denial of a motion to suppress evidence under CPL 710.20 … . The Legislature has preserved such claims for appellate review through the enactment of CPL 710.70(2) … . CPL 710.70(2) expressly grants a defendant a statutory right to appellate review of an order denying a motion to suppress evidence “notwithstanding the fact” that the judgment of conviction “is entered upon a plea of guilty.” However, the statutory right to appellate review created by CPL 710.70(2) applies to orders which deny a motion to suppress evidence on the grounds enumerated by CPL 710.20 … .  Athough CPL 710.20(5)  authorizes a defendant to move to suppress evidence of “a chemical test of the defendant’s blood administered in violation of the provisions” of Vehicle and Traffic Law § 1194(3) or “any other applicable law,” that provision is not implicated here. In this case, the defendant did not move to suppress the results of a chemical test of his blood. Indeed, the police did not perform a chemical test upon the defendant. Rather, he moved to preclude the People from admitting testimony of his refusal to submit to a chemical test. Such a motion cannot be characterized as one seeking suppression under CPL 710.20(5). Accordingly, the defendant does not have a statutory right to appellate review of the County Court’s ruling permitting the introduction of evidence of his refusal to submit to a chemical test.

Nor is the defendant’s claim that the County Court erred in ruling that the People would be permitted to introduce evidence at trial of his refusal to submit to a chemical test a claim of constitutional dimension, or one that bears upon the integrity of the judicial process. Rather, the court’s determination relates to an evidentiary or technical matter. People v Sirico, 2015 NY Slip Op 07862, 2nd Dept 10-28-15

 

,

Affidavits and Text Messages Do Not Constitute “Documentary Evidence” In the Context of a Motion to Dismiss Pursuant to CPLR 3211(a)(1)

The Second Department determined defendant’s motion to dismiss the breach of contract complaint should have been denied. The affidavits and text messages submitted in support of the motion did not constitute “documentary evidence” upon which a motion to dismiss may be based. The court defined “documentary evidence” in this context:

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as “documentary evidence,” it must be “unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,’ would qualify as documentary evidence’ in the proper case” … . However, “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … .

Here, the affidavits and text messages relied upon by the Supreme Court in concluding that the plaintiff failed to comply with the alleged condition precedent were not ” essentially undeniable,'” and did not constitute documentary evidence … . Eisner v Cusumano Constr., Inc., 2015 NY Slip Op 07812, 2nd Dept 10-28-15

 

, ,

Criteria for Whether Public Employer/Employee Dispute Is Arbitrable Explained

The Second Department determined the village’s petition to stay arbitration was properly denied. The firefighters’ union filed a grievance when the town decided to lay off six bargaining unit members and assign bargaining unit work to nonbargaining unit volunteers. Supreme Court determined the parties had agreed to arbitrate these matters in the collective bargaining agreement (CBA). The court explained the criteria for determining whether a public employer/employee dispute is arbitrable:

” The determination of whether a dispute between a public sector employer and employee is arbitrable is subject to [a] two-prong test'” …” Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance'”  … . “If there is no prohibition against arbitrating, the court must examine the parties’ collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute” … .

Here, the petitioner argued that arbitration of layoffs of union-member firefighters is prohibited by public policy. Regarding a violation of public policy, “a dispute is not arbitrable if a court can conclude “without engaging in any extended factfinding or legal analysis” that a law “prohibit[s], in an absolute sense, [the] particular matters [to be] decided’ by arbitration”‘ … . The petitioner failed to point to any law or public policy that would prohibit arbitration of the grievance. * * *

The grievances were reasonably related to the general subject matter of the CBA and, therefore, the petitioner’s management rights granted under Article XVII, and “the question of the scope of the substantive provisions of the CBA [are] a matter of contract interpretation and application reserved for the arbitrator” … . Matter of Village of Garden City v Local 1588, Professional Firefighters Assn., 2015 NY Slip Op 07672, 2nd Dept 10-21-15

 

Amendment of Decision and Order Dismissing Indictment Was Proper

The Second Department, over an extensive dissent, determined Supreme Court properly amended a decision and order which initially granted defendant’s motion to dismiss the indictment on “speedy trial” grounds. The amended decision and order, which was issued a day after the initial decision and order, denied the motion with respect to three counts:

A court possesses “inherent authority to rectify a prior error in dismissing an indictment” … , and “where there is a clearly erroneous dismissal of an indictment or count thereof, it is unreasonable to foreclose a court from reconsidering its previous determination” …, even in the absence of a formal motion for leave to reargue by the People … . Furthermore, under the facts of this case, there was no constitutional or statutory impediment to the court’s power to promptly modify its prior determination to dismiss the indictment and to thereby correct the previous error … .

Here, the Supreme Court recognized the error only one day after issuing the initial decision and order, well within the time period during which, for example, a motion for leave to reargue could have been made and before the People even had a reasonable opportunity to make such a motion. Moreover, while any present challenge to the court’s determination of the statutory speedy trial issue in the amended decision and order was forfeited by the defendant’s knowing, voluntary, and intelligent plea of guilty …, we note, in any event, that the error in initially dismissing counts seven, eight, and nine based on an alleged statutory speedy trial violation was clearly apparent from the documents in the court file. Accordingly, the prompt issuance of the amended decision and order correcting the prior mistake in this case was not improper or jurisdictionally defective. People v Francis, 2015 NY Slip Op 07679, 2nd Dept 10-21-15

 

,

Unambiguous Limitation of Liability to $10,000 Should Have Been Enforced

The Second Department determined summary judgment should have been granted to defendant insurer. A fire damaged school dormitories. The insurer paid for the repair but paid only $10,000 toward the more than $200,000 the school paid to relocate the students. The court determined that the policy was unambiguous and the $10,000 limit was properly applied to the relocation costs. The court explained the relevant analytical principles:

In construing policy provisions defining the scope of coverage pursuant to a policy of insurance, courts ” first look to the language of the policy'” …, reading it ” in light of common speech and the reasonable expectations of a businessperson'” …, and in a manner that ” leaves no provision without force and effect'” … . The unambiguous terms of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such terms is a question of law for the court … . Where an ” agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity'” … . However, if the terms of the policy are ambiguous, any ambiguity must be construed in favor of the insured and against the insurer … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law. The $10,000 limitation was at the end of the pertinent “Additional Coverage” section 5 titled “Institutional Income and Extra Expense.” The limitation stated that the most the defendant “will pay under this Additional Coverage for Institutional Income and Extra Expense is $10,000, unless a higher limit is shown on the Declarations Page.” There was no such higher limit shown on that page. Contrary to the plaintiff’s contention, there was no ambiguity in this additional coverage. Viznitz v Church Mut. Ins. Co., 2015 NY Slip Op 07648, 2nd Dept 10-21-15

 

Complaint Did Not Sufficiently Allege Demand for Board’s Action Would Be Futile, Criteria Described

The Second Department determined Supreme Court properly granted defendants’ motion to dismiss the complaint for failure to state a cause of action. The complaint did not sufficiently allege efforts to have the board initiate the action or the reasons for not making that demand:

Such “[d]emand is futile, and excused, when the directors are incapable of making an impartial decision as to whether to bring suit” … . Demand is excused because of futility when a complaint alleges with particularity (1) “that a majority of the board of directors is interested in the challenged transaction,” which may be based on self-interest in the transaction or a loss of independence because a director with no direct interest in the transaction is “controlled” by a self-interested director, (2) “that the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances,” or (3) “that the challenged transaction was so egregious on its face that it could not have been the product of sound business judgment of the directors” … . However, “[t]o justify failure to make a demand, it is not sufficient to name a majority of the directors as defendants with conclusory allegations of wrongdoing or control by wrongdoers” … .

Here, the plaintiffs failed to adequately plead that they made a sufficient demand, or that any demand would have been futile … . Taylor v Wynkoop, 2015 NY Slip Op 07643, 2nd Dept 10-21-15

 

,

Former Parking Enforcement Officer Entitled to Hearing Re: Whether Town Abolished Her Civil Service Position in Bad Faith

The Second Department determined petitioner was entitled to a hearing re: whether the town acted in bad faith in abolishing her position as a parking enforcement officer. Just prior to her termination, the town hired four parking enforcement officers who were not required to take the civil service examination:

In light of NY Constitution, article V, § 6, a public employer may abolish a civil service position when the “discontinuance of the position would promote efficiency and economy,” provided that the employer acts in good faith … . The Court of Appeals has stated that “[a] public employer may abolish civil service positions for the purpose of economy or efficiency, as long as the position is not abolished as a subterfuge to avoid statutory protection afforded civil servants before they are discharged'” … . Where a public employer has abolished a civil service position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law … .

Here, it is undisputed that four new part-time parking enforcement officers were hired in 2011; one of those employees was hired in October 2011, only a month before the petitioner was informed that her position would likely be abolished. Further, the Town and Town Board submitted no evidence as to whether the decision to abolish the petitioner’s position was made by Town Board resolution, or by some other means. Pursuant to the doctrine of legislative equivalency, a civil service position “created by a legislative act can only be abolished by a correlative legislative act” … . Here, the record does not indicate the specific mechanism by which the petitioner’s position was abolished. Additionally, although the Town submitted some evidence showing that it undertook various cost-cutting measures in connection with its 2012 budget, the record contains no evidence as to any legislative or other deliberations underlying the determination at issue here. Matter of Colabella v Town of Eastchester, 2015 NY Slip Op 07656, 2nd Dept 10-21-15

 

, ,

Zoning Board’s Determination Lacked a Rational Basis

The Second Department determined Supreme Court properly found the zoning board of appeals (ZBA’s) determination was not supported by the evidence and lacked a rational basis. The petitioners were denied permission to operate a concrete aggregate recycling business in an area where the processing of raw materials was prohibited. The zoning board denied the application on the ground that petitioners were going to process raw materials. However petitioners denied that they would process raw materials and there was no evidence, other than rumor, to the contrary. The court explained the criteria for review of a zoning determination:

“In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion”… . Where, as here, a determination is made by a zoning board of appeals after a public hearing, the determination of the zoning board should be upheld if it has a rational basis supported by evidence in the record (see CPLR 7803[4] …).

* * * The key determination made by the ZBA … was that the petitioners intended to engage in activities that included the processing of raw materials on the site, despite the petitioners’ repeated statements and assurances otherwise. The record is replete with instances where the petitioners disputed, as nothing more than baseless rumor and suspicion, the claim that they intended to engage in activities other than concrete aggregate recycling on the site. The record is also devoid of any evidence supporting the ZBA’s conclusion that the petitioners would engage in activities other than those which were explicitly approved or permitted as of right under the zoning and planning ordinance in force prior … . Matter of Green Materials of Westchester v Town of Cortlandt, 2015 NY Slip Op 07659, 2nd Dept 10-21-15

 

,

School District Failed to Demonstrate It Did Not Have Actual or Constructive Notice of Student’s Potential to Harm Other Students

The Second Department, over a dissent, determined the school district’s motion for summary judgment was properly denied. The district failed to demonstrate it did not have actual or constructive notice of a student’s potential for harming other students:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “An injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

* * * [The school district’s] submissions failed to eliminate all triable issues of fact as to whether the School District had actual or constructive notice of the fellow student’s potential for causing harm, and whether, under the circumstances, the School District provided adequate supervision during the field trip … . Lennon v Cornwall Cent. School Dist., 2015 NY Slip Op 07628,, 2nd Dept 10-21-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy