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Procedure for Determining a Pre-Answer Motion to Dismiss a Declaratory Judgment Action Explained

In the context of an action for a declaratory judgment concerning the legality of the collective bargaining agreement (re: the waiver of seniority rights), the Second Department explained how a pre-answer motion to dismiss pursuant to CPLR 3211 (a)(7) [failure to state a cause of action] should be considered:

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . “Thus, where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'” … . A court may reach “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly”… .  Bregman v East Ramapo Cent Sch Dist, 2014 NY Slip Op 07610, 2nd Dept 11-12-14

 

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Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

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Doctrine of Primary Assumption of the Risk Does Not Apply to Game of “Manhunt” Played After Midnight on School Property

The Second Department determined that a game of “Manhunt” played on school premises after midnight was not the type of activity covered by the primary assumption of the risk doctrine:

…[T]he defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the action was barred by the doctrine of primary assumption of risk … , the doctrine of primary assumption of risk is most persuasively justified for its utility in facilitating ” free and vigorous participation in athletic activities'” … . As the Court of Appeals explained in Trupia v Lake George Cent. School Dist. (14 NY3d 392), by placing the risk of participation on the participants themselves, rather than on the sponsor, the doctrine encourages sponsorship, which leads to more participation … . The doctrine of primary assumption of risk is not applicable to the midnight game of manhunt at issue in this case. As with the “horseplay” at issue in Trupia, the game of manhunt at issue in this case is not the sort of “socially valuable voluntary activity” that the doctrine seeks to encourage … . Therefore, the defendant did not establish that the doctrine of primary assumption of risk applies here … . Wolfe v North Merrick Union Free School Dist, 2014 NY Slip Op 07499, 2nd Dept 11-5-14

 

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Criteria for “Substantial Evidence” Review of an Administrative Determination After a Hearing Explained

In annulling the ruling of the Housing Authority because it was not supported by substantial evidence, the Second Department explained its role in reviewing an administrative ruling after a hearing:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence” … . Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… . While the level of proof is less than a preponderance of the evidence, substantial evidence does not arise from bare surmise, conjecture, speculation, or rumor …, or from the absence of evidence supporting a contrary conclusion … .

Here, the Housing Authority’s determination that the petitioner allowed her father to reside with her without notice to or approval from the Housing Authority in violation of the rules and regulations of the Section 8 Housing Choice Voucher Program was not supported by substantial evidence. Matter of Harrison v Palumbo, 2014 NY Slip OP 07510, 2nd Dept 11-5-14

 

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Non-Party Attorneys Properly Held in Civil Contempt for Starting a Class Action Suit In Violation of Anti-Suit Injunctive Order

In a proceeding to liquidate the Executive Life Insurance Company of New York, non-party attorneys for objectors to the liquidation filed a class action lawsuit in federal court in violation of anti-suit injunctive orders issued by Supreme Court.  In affirming Supreme Court’s finding the non-party attorneys in contempt, the Second Department explained the criteria:

To prevail on a motion to punish for civil contempt, the movant must demonstrate that the alleged contemnor violated a clear and unequivocal court order, of which the alleged contemnor had knowledge, thereby prejudicing a right of a party to the litigation (see Judiciary Law § 753[A][3]…). “To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” … .

* * * The commencement of the class action violated the anti-suit injunctive provisions set forth in three court orders entered in this rehabilitation proceeding commenced pursuant to Insurance Law article 74, that was later converted into a liquidation proceeding … . An order of the court must be obeyed until that order is set aside, either by appeal or otherwise, where, as here, the court that issued the order had jurisdiction to issue it … . The petitioner also demonstrated that the commencement of the class action prejudiced its rights … . Matter of Executive Life Ins Co of NY, 2014 NY Slip Op 07506, 2nd Dept 11-5-14

 

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Effects of Taking Property “As Is,” the Implied Covenant of Fair Dealing, and Constructive Eviction Discussed

Plaintiff-tenant took possession of the leased premises “as is.” Subsequently plaintiff stopped paying rent claiming that the condition of the elevator prevented the issuance of a certificate of occupancy.  In denying both parties’ motions for summary judgment (because plaintiff failed to show the condition of the elevator was the reason for the denial of the certificate of occupancy; and because the defendants failed to show it properly maintained the elevator), the Second Department explained the relevant contract principles:

A court’s fundamental objective in interpreting a contract is to determine the parties’ intent from the language employed and to fulfill their reasonable expectations … . “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . Thus, “[i]t is the role of the courts to enforce the agreement made by the parties—not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction” … .

Moreover, “[i]mplicit in every contract is a covenant of good faith and fair dealing, which encompasses any promise that a reasonable promisee would understand to be included” … . “The implied covenant of good faith and fair dealing is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement” … . * * *

…[T]he fact that the plaintiff agreed to take possession of the leased premises in “as-is” condition does not necessarily warrant the conclusion that the plaintiff intended to waive any claims with respect to the portions of the building that were not leased to him, or to waive the landlord’s obligation to maintain the elevator. The defendants … argued that the provision of the lease which required them to “maintain the current elevator services and maintain and repair the elevator in reasonable condition” only obligated them to prevent any deterioration in the elevator service existing on the date that the parties entered into the lease. However, in light of the implied covenant of good faith and fair dealing, a reasonable tenant could interpret that provision as obligating the landlord to maintain the elevator free from violations and to promptly perform repairs, particularly if failing to do so could prevent the tenant from obtaining a certificate of occupancy for the leased premises. …

[Re: the defendants-landlords’ motion for summary judgment to recover unpaid rent:] “The obligation of a commercial tenant to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services” … . Before a tenant may withhold rent, the tenant must prove actual or constructive eviction … . To demonstrate constructive eviction, then, a tenant must vacate the premises … . Here, the defendants’ submissions failed to demonstrate, prima facie, that the plaintiff remained in possession of the leased premises and thus, was not constructively evicted. Prakhin v Fulton Towers Realty Corp, 2014 NY Slip Op 07487, 2nd Dept 11-5-14

 

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Formal Training Not Necessarily Required to Qualify an Expert

In affirming the conviction, the Second Department explained the discretionary criteria for qualifying an expert at trial, which does not necessarily depend upon formal training:

The qualification of a witness to testify as an expert is a matter that rests in the sound discretion of the trial court, and the court’s determination should not be disturbed on appeal in the absence of a serious mistake, an error of law, or an improvident exercise of discretion … . “The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject” … . People v Dorvilier, 2014 NY Slip Op 07517, 2nd Dept, 11-5-14

 

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Dismissal of a Criminal Charge In the Interest of Justice Can Constitute a “Termination In Favor of the Accused” In the Context of a Malicious Prosecution Cause of Action

In affirming Supreme Court’s finding the actions time-barred, the Second Department explained when the one-year statute of limitations starts to run in false arrest (release from confinement), false imprisonment (release from confinement), and intentional infliction of emotional distress (date of arrest) causes of action.  Supreme Court had also dismissed the malicious prosecution cause of action on the ground that the “interest of justice” dismissal of the accusatory instrument in the underlying criminal case was not a favorable termination of the criminal action.  The Second Department disagreed, reinstated that cause of action and described the relevant analysis:

Here, the Supreme Court concluded that the underlying criminal proceeding, in which the accusatory instrument was dismissed in the interest of justice … , was not terminated in the plaintiff’s favor. This conclusion is incorrect. “[A]ny termination of a criminal prosecution, such that the criminal charges may not be brought again, qualifies as a favorable termination, so long as the circumstances surrounding the termination are not inconsistent with the innocence of the accused” … .

In Cantalino [96 NY2d 391], the Court of Appeals considered whether the dismissal of a criminal proceeding in the interest of justice was a ” favorable termination'” for purposes of a malicious prosecution action … . The Court explained that there was no “per se rule that a dismissal in the interest of justice can never constitute a favorable termination” … . Rather, the Court set forth a “case-specific rule,” whereby the courts are to determine whether, “under the circumstances of each case, the disposition was inconsistent with the innocence of the accused” … . In the case before it, the Court of Appeals concluded that the interest-of-justice dismissal constituted a favorable termination, citing the Criminal Court’s indication that it was dismissing the charges because they were unfounded … . It contrasted the case before it with a prior case, Ward v Silverberg (85 NY2d 993), in which it had found that an interest-of-justice dismissal was not a favorable termination of the criminal proceeding. The Court explained that, in Ward, unlike in Cantalino, the Criminal Court had “recognized that [the] plaintiff had committed the charged conduct, [but] it did not believe a criminal sanction was appropriate” … . Thus, “the criminal charges in Ward were dismissed out of mercy” … . A dismissal out of mercy “is fundamentally inconsistent with the accused’s innocence” … .

In the present case, the criminal charges against the plaintiff were not dismissed out of mercy. Rather, they were dismissed based upon “the weakness of the proof of guilt” … , a conclusion which is not inconsistent with the plaintiff’s innocence … . Bellissimo v Mitchell, 2014 NY 07464, 2nd Dept 11-5-14

 

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Son of Sam Law Required Murderer’s Police Pension Be Paid to Daughter and Estate of the Murder Victim

The Second Department determined that the “Son of Sam Law” required that the pension to which a convicted murderer was entitled be paid to the estate of the murder victim.  The plaintiff is the daughter of the murder victim.  The murderer is plaintiff’s father. The father fraudulently transferred his pension rights to his second wife.  Plaintiff, individually and as the administrator of her mother’s estate, procured a wrongful death judgment against her father. The court affirmed Supreme Court’s ruling that the transfer of the pension to the father’s second wife was fraudulent under Florida law (where the transfer was made) and the “Son of Sam Law” trumped the Retirement and Social Security Law such that the father’s pension was payable to the plaintiff:

“Under the full faith and credit clause . . . , where collateral attack on the ground of fraud would be permitted in the courts of the foreign State in which the judgment had been rendered, our courts will entertain a similar challenge” … . Here, Florida law permits a collateral attack on the defendant’s transfer of his pension to [second wife] on the ground that it constituted a fraudulent transfer … . * * *

Next, we reject [the second wife’s] contention that the defendant’s pension is not subject to execution or attachment by virtue of section 110(2) of the Retirement and Social Security Law or under certain provisions of the Administrative Code of the City of New York (see Administrative Code of City of NY §§ 13-181, 13-212, 13-264). As [the second wife] correctly contends, section 110(2) of the Retirement and Social Security Law provides that the right of a person to a pension “[s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever” (Retirement and Social Security Law § 110[2]). In 2001, however, the Legislature amended the Son of Sam law to subject the “[f]unds of a convicted person” to an action for damages by a crime victim, a crime victim’s representative, or certain other persons (L 2001, ch 62, § 1; see Executive Law § 632 a[1][a], [c], [d]; [3]). The phrase “funds of a convicted person” was broadly defined as “all funds and property received from any source” (Executive Law § 632 a[1][c] [emphasis added]).

We conclude, for the reasons stated by our colleagues in the Appellate Division, [3rd] Department [97 AD3d 235]…, that the defendant’s pension is subject to execution under the Son of Sam law. Both the clear statutory language and the legislative history of the 2001 amendments to the Son of Sam law evince the Legislature’s intent to permit crime victims to recover assets from convicted persons, including pensions, regardless of the source of the convicted person’s funds … . As the [3rd] Department concluded, a contrary holding would “directly thwart[ ] the Legislature’s stated intent of holding convicted criminals financially … . Kane v Galtiere, 2014 NY Slip Op 07476, 2nd Dept 11-5-14

 

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Trial Court Properly Amended Pleadings Sua Sponte and Properly Allowed Plaintiff to Reopen the Case to Present Additional Evidence of Damages

The Second Department held that Supreme Court properly amended the pleadings sua sponte and properly allowed the plaintiff to reopen its case to present additional proof:

A court may amend pleadings before or after judgment to conform them to the evidence (see CPLR 3025[c]). Where no prejudice is shown, an amendment may be allowed during or even after trial … . Furthermore, an application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion … . A trial court, in the exercise of discretion and for sufficient reasons, may allow a party to reopen his or her case, and supplement the evidence to cure any defects in the evidence that have inadvertently occurred … .

Here, under the circumstances of this case, the Supreme Court providently exercised its discretion in, sua sponte, amending the pleadings, continuing the trial, and permitting the plaintiff to reopen its case to present additional proof of damages … . MRI Enters Inc v Comprehensive Med Care of NY PC, 2014 NY Slip Op 07482, 2nd Dept 11-5-14

 

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