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Criteria for Contractual Indemnification Explained

The Second Department determined plaintiff’s Labor Law 241(6) cause of action properly survived summary judgment and defendant was entitled to indemnification under the relevant contract.  The court explained the contractual indemnification criteria:

“While owners and general contractors owe nondelegable duties under the Labor Law to plaintiffs who are employed at their worksites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident” … . A party’s right to contractual indemnification depends upon the specific language of the relevant contract … . A promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances … . In addition, “a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (…see General Obligations Law § 5-322.1). Shea v Bloomberg LP, 2015 NY Slip OP 00353, 2015 NY Slip Op 00353, 2nd Dept 1-14-15

 

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Statute Prohibits Petition for Downward Modification of Support After Arrears Accrue/No Appeal Lies from an Order Entered by Consent

The Second Department determined father could not bring a petition for retroactive reduction of child support and a reduction of arrears after the arrears had accrued.  The court noted that father could not appeal an order he consented to:

Family Court Act § 451 provides that the court “shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section.” A court “ha[s] no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation” … . Here, the father petitioned for a downward modification of his child support obligation after the arrears accrued. Thus, any modification was [*2]prohibited.

In any event, the Family Court properly concluded that the father was barred from relitigating the amount of arrears owed. The order dated July 11, 2012, which fixed the amount of arrears that the father owed, and provided the basis for the entry of the money judgment against him, was entered on his consent. On appeal, a party may not collaterally attack an order entered on his or her consent … . Matter of Cadwell v Cadwell, 2015 NY Slip Op 00369, 2nd Dept 1-14-15

 

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In an Employment Discrimination Case, Plaintiff Is a Member of a Protected Class By Virtue of His Wife’s Religion

The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined plaintiff had raised a question of fact whether he was the subject of employment discrimination in violation of the Executive Law (State Human Rights Law).  Plaintiff’s wife is Jewish and plaintiff is not. Plaintiff’s co-workers are alleged to have made anti-Semitic remarks and plaintiff alleged his firing was a manifestation of discrimination against members of the Jewish faith.  The question of first impression before the court was whether plaintiff is a member of a protected class by virtue of his wife’s religion.  The Second Department found that he is:

To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively discharged, (3) that he or she was qualified to hold the position from which he or she was terminated, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination … . * * *

The defendants assert that there is no authority to support a claim of discrimination based upon the religious belief of a spouse under the State Human Rights Law. While there is no authority addressing this issue under the State Human Rights Law, several federal courts have construed Title VII to protect individuals “who are the victims of discriminatory animus towards third persons with whom the individuals associate” … . * * *

While the plaintiffs’ allegations call to mind the infamous Nuremberg Laws enacted in 1935, which stripped German Jews of their civil rights and citizenship and prohibited persons of “German or related blood” from marrying or having sexual relations with German Jews, we are aware that the defendants’ alleged conduct is not akin to Town-initiated discrimination. State Human Rights Law claims under Executive Law § 296 are “analytically identical to claims brought under Title VII” …, and thus we see no reason to construe the State statute more restrictively than the federal statute. Accordingly, the plaintiff sufficiently demonstrated his membership in a protected class by virtue of the defendants’ alleged discriminatory conduct stemming from his marriage to a Jewish person. Indeed, we note that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual’s First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty (see Roberts v United States Jaycees, 468 US 609, 617-618 [“choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme”]; Matusick v Erie County Water Auth., 757 F3d 31 [2d Cir] [where plaintiff, a white male, alleged that he was discriminated against and terminated from his employment because of his engagement to an African-American female, the United States Court of Appeals for the Second Circuit recognized, for the first time, that a constitutionally protected right to intimate association based upon marriage engagement could be the predicate for a claim that the defendants, while acting under color of state law, deprived the plaintiff of his First and Fourteenth Amendment rights in violation of 42 USC § 1983]). Chiara v Town of New Castle, 2015 NY Slip Op 00326, 2nd Dept 1-14-15

 

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Potential Use of Condemned Property In Conjunction with Adjoining Land Properly Considered in the Valuation of the Taking/Statutory 6% Interest Applies in Condemnation Proceedings

The Second Department determined Supreme Court properly took into consideration the potential use of the condemned land in conjunction with adjacent parcels of land in assessing the value of the property.  The court further determined that the statutory 6% interest for condemnation proceedings (General Municipal Law 3-a(2)) applied:

The measure of damages in a condemnation proceeding ” must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time'” … . “The determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future” … . ” The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value'” … . “Thus, a claimant is entitled to the fair market value of its property for its highest and best available use even though that use is in connection with adjoining properties, provided there is a reasonable probability that the condemned property would be combined with other tracts in the reasonably near future”… . Matter of City of Long Beach v Sun NLF Ltd Partnership, 2015 NY Slip Op 00370, 2nd Dept 1-14-15

 

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Defendant Was Subjected to Custodial Interrogation Before Waiving His Right to Remain Silent—Oral Pre-Miranda and Written Post-Miranda Statements Should Have Been Suppressed—Error Deemed Harmless

The Second Department determined defendant’s pre-Miranda statements, as well as his post-Miranda written statement, should have been suppressed because the defendant was in custody and interrogated before he waived his right to remain silent.  Defendant had been stopped by two police cars, one of which cut off defendant’s lane of travel. Defendant then consented to going to the police station where he was placed in a locked room and subjected to accusatory questioning.  (The court ultimately determined the error was harmless, however):

Contrary to the suppression court’s determination, the statements made by the defendant at the police station should have been suppressed as the product of custodial interrogation conducted without the benefit of Miranda warnings. “Miranda warnings need not be given until both the elements of police custody’ and interrogation’ are present” … . The issue of whether a suspect is in custody is generally a question of fact … . In deciding whether a defendant was in custody before receiving Miranda warnings, “the subjective beliefs of the defendant are not to be the determinative factor” … . Nor does the determination turn on the subjective intent of the police officer … . Rather, the test is “what a reasonable man [or woman], innocent of any crime, would have thought had he [or she] been in the defendant’s position” … . “[T]he term interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” … .

Here, a reasonable, innocent person would not have believed that he or she was free to leave the police station at the time the defendant made his oral statements to the police … . Moreover, the questions by the police were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response … . Accordingly, the oral statements made by the defendant at the police station were the product of custodial interrogation without Miranda warnings and should have been suppressed. Furthermore, the written statement by the defendant, although created after Miranda warnings were issued, also should have been suppressed, as there was no attenuation between the statements that were obtained unlawfully and the written statement … . People v Reardon, 2015 NY Slip Op 00394, 2nd Dept 1-14-15

 

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Detective’s Testimony About a Non-Testifying Witness’ Description of the Perpetrator Properly Admitted to Explain Detective’s Subsequent Actions and Complete the Narrative

The Second Department, over an extensive dissent, determined a detective’s testimony about a non-testifying witness’ (Anderson’s) description of the perpetrator was admissible for the non-hearsay purpose of explaining the detective’s subsequent actions, and completing the narrative of events:

The jury was specifically instructed not to consider this description for its truth, and the description was properly admitted for the relevant, nonhearsay purpose of “establishing the reasons behind the detective’s actions, and to complete the narrative of events leading to the defendant’s arrest” … . Contrary to the view of our dissenting colleague, we find that the People sufficiently established a connection between Anderson’s description and subsequent police conduct. Anderson’s general description of the perpetrator, as distinct from a direct identification of the defendant, led to successive police investigatory conduct such as interviewing other witnesses, including a witness who identified the defendant at trial, and procuring the surveillance video of the defendant … . Thus, the Supreme Court did not err in admitting Anderson’s description of the perpetrator for a limited nonhearsay purpose … . People v Speaks, 2015 NY Slip Op 00396, 2nd Dept 1-14-15

 

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Father’s Recording of Defendant’s Berating and Threatening Father’s Child Admissible Under the “Vicarious Consent” Theory (Father Vicariously Consented, on Behalf of the Child, to the Recording)/Variance Between Jury Instruction and Charges in the Indictment Was Harmless Error–No Possibility Defendant Was Convicted of a Theory Not Encompassed by the Indictment

The Second Department applied a “vicarious consent” theory to reject the defendant’s argument that the father’s recording of the defendant berating and threatening the father’s child violated the eavesdropping statutes, Penal Law 250.05 and CPLR 4506. Father had called mother’s cell phone which mother answered without speaking. Father could hear the defendant speaking to the child over the phone and recorded the defendant’s words.  In addition to the “vicarious consent” discussion, he Second Department noted that a variance between the jury instructions and the charges in the indictment was harmless error because there was no possibility the guilty verdict was based upon a theory not in the indictment.  With respect to the “vicarious consent” to the recording, the court wrote:

While … Penal Law § 250.05 serves the strong public policy goal of protecting citizens from eavesdropping, we are not persuaded that the New York Legislature intended to subject parents to criminal penalties when, “out of concern for the bests interests of their minor child, they record that child’s conversations” … . Given the similarity between the federal wiretap statute and New York’s eavesdropping statute, and recognizing that the “vicarious consent” exemption is rooted on a parent’s need to act in the best interests of his or her child …, we deem it appropriate to adopt it as an exemption to Penal Law § 250.05.

Here, the People sufficiently demonstrated that the father had a “good faith, objectively reasonable basis to believe” that it was necessary for the welfare of the infant to record the conversation …, such that he could consent to the recording on the infant’s behalf … . Accordingly, the “vicarious consent” exemption applies, and admission of the subject recording was not barred by CPLR 4506. People v Badalamenti, 2015 NY Slip Op 00384, 2nd Dept 1-14-15

 

Abuse of Discretion to Grant Motion for Leave to Amend Answer On the Eve of Trial

The Second Department determined Supreme Court should not have granted defendant’s motion for leave to amend his answer, which was made long after the action had been certified for trial:

While leave to amend a pleading shall be freely granted (see CPLR 3025[b]), a motion for leave to amend is committed to the broad discretion of the court … . “In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered” … . Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit … .

“However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'” … . “Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly” … . Yong Soon Oh v Hua Jin, 2015 NY Slip Op 00362, 2nd Dept 1-14-15

 

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Supreme Court Properly Denied a Motion to Approve a Settlement of a Proposed Non-Opt-Out Class Action—Shareholders Who Objected to the Settlement Were Entitled to Opt Out to Preserve Their Damages Claims

The Second Department, over an extensive dissent, determined Supreme Court had properly denied defendant’s motion, made jointly with the plaintiff, to approve a settlement of a proposed non-opt-out class action.  The majority concluded that shareholders who objected to the settlement were entitled to “opt out” to preserve their damages claims, as the Court of Appeals held in Matter of Colt Indus Shareholder Litig, 77 NY2d 185.  The Second Department explained the facts of the case as follows:

The instant appeal arises from a merger between the defendant On2 Technologies, Inc. (hereinafter On2), a publicly held Delaware corporation that developed video compression technology, and Google, Inc. (hereinafter Google), the global technology conglomerate specializing in Internet-related services. On August 4, 2009, On2 entered into a merger agreement with Google and Oxide, Inc., a subsidiary of Google, pursuant to which Google agreed to acquire each share of On2 common stock in exchange for 60 cents worth of Google Class A common stock. At that time, the proposed transaction was valued at approximately $106.5 million.

On August 7, 2009, the plaintiff, on behalf of himself and other similarly situated shareholders of On2, commenced the instant action, alleging that On2’s board of directors breached its fiduciary duties to the shareholders by, inter alia, failing to ensure that the shareholders would receive maximum value for their shares. Among other things, the plaintiff sought certification of a class to prosecute the matter as a class action, a declaration that the merger agreement was unlawful and unenforceable, rescission of the merger agreement, and injunctive relief. In August 2009, other shareholders of On2 (hereinafter collectively the Delaware plaintiffs) commenced similar actions in the Delaware Court of Chancery.

On February 22, 2010, the parties to this action, as well as the Delaware plaintiffs, proposed a settlement, pursuant to which they agreed that “solely for the purpose of effectuating the [s]ettlement,” the instant action “may be maintained . . . as a non-opt out class action.” The settlement provided, inter alia, for dismissal of the New York and Delaware actions in their entirety, with prejudice, and a release of “any and all” merger-related claims. The proposed settlement class encompassed “all persons and entities who held shares of the common stock of On2 . . . at any time between August 4, 2009 and February 19, 2010.”

Upon notice of the proposed settlement to all record holders of On2 common stock, 226 of those shareholders filed objections to the proposed settlement. The objectors contested the proposed settlement, claiming that it contained “an astonishingly broad” release that would “unlawfully restrict” and “unduly burden” the rights of shareholders to pursue their own individual claims for damages. Following a fairness hearing, the Supreme Court denied approval of the settlement because it did not afford nonresident class members the opportunity to opt out of the settlement in order to preserve their right to assert claims for damages. We affirm.  Jinnaras v Alfant, 2015 NY Slip Op 00335, 2nd Dept 1-14-15

 

Client’s Motion to Quash Attorney’s Charging Lien Properly Granted Without a Hearing/No “Conflicting Facts” Concerning Whether the Attorney Was Discharged Was For Cause

The Second Department determined the client’s motion to quash the attorney’s charging lien was properly granted (without a hearing) because the attorney failed to raise a question of fact whether his discharge was for cause:

A client has “an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney” … . “Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien” (…see Judiciary Law § 475…). In contrast, “[a]n attorney who is discharged for cause . . . is not entitled to compensation or a lien” … . “Where there are conflicting claims as to whether an outgoing attorney was discharged with or without cause, a hearing is necessary to resolve such dispute” … .

On his motion to quash Wilson’s charging lien, Romero submitted evidence in support of his contention that the plaintiff had discharged Wilson for cause. In opposition, Wilson failed to dispute or address Romero’s factual assertions and, thus, there were no “conflicting claims” as to whether the discharge was for cause … . Sacarello v City of New York, 2015 NY Slip Op 00350, 2nd Dept 1-14-15

 

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