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No Fiduciary Duty Re: Purchase of One Shareholder’s Stock by Another in a Close Corporation

In affirming Supreme Court’s dismissal of a cause of action for breach of fiduciary duty based on one shareholder’s purchase of another shareholder’s stock in a close corporation, the Second Department noted that the status of an officer, director or shareholder of a close corporation does not, without more, create a fiduciary relationship:

“The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct” … . “A fiduciary relationship exists between two persons when one of them is under a duty to act for . . . the benefit of another upon matters within the scope of the relation” …

Contrary to the plaintiff’s contention, [the purchaser’s] status as an officer, director, or shareholder of a close corporation “does not, by itself, create a fiduciary relationship as to his individual purchase of [another shareholder’s] stock” … .  Varveris v Zacharakos, 2013 NY Slip Op 07028, 2nd Dept 10-30-13

 

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People Could Not Appeal Judge’s Vacation of Defendant’s Conviction and Sentencing as a Youthful Offender—No Statute Allows Such an Appeal

In dismissing the People’s appeal, the Second Department explained that there was no statutory right for an appeal of the judge’s vacating defendant’s conviction and sentencing defendant as a youthful offender.  The only vehicle for the People was an article 78 prohibition proceeding:”

The Criminal Procedure Law expressly enumerates and describes the orders appealable by the People to the Appellate Division in a criminal case (see CPL 450.20…), and “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” … . As no statute authorizes an appeal by the People to the Appellate Division from an order, in effect, vacating a conviction and adjudicating a defendant a youthful offender (see CPL 450.20), the People’s appeal must be dismissed …. The proper vehicle for challenging the Supreme Court’s determination is a CPLR article 78 proceeding in the nature of prohibition… . People v Tony C, 2013 NY Slip Op 07055, 2nd Dept 10-30-13

 

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Anders Brief Rejected

In finding an “Anders” brief insufficient, the Second Department wrote:

The brief submitted by the appellant’s assigned counsel pursuant to Anders v California (386 US 738) is deficient because it fails to adequately recite the underlying facts in the case and analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” …, we must assign new counsel to represent the appellant… . People v Francis, 2013 NY Slip Op 07058, 2nd Dept 10-30-13

 

Curtailing of Defense Counsel’s Summation Argument Re: Lack of Motive Was (Harmless) Error

Although the Second Department found the error harmless, the court noted that the trial court improperly curtailed defense counsel’s summation argument concerning the lack of a motive.  People v Papas, 2013 NY Slip Op 07065, 2nd Dept 10-30-13

 

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Admission of Cell-Phone-Location Data Did Not Required Frye Hearing; Prior Crime Evidence Properly Admitted to Prove Defendant’s Identity as Perpetrator of Charged Crime

In a full-fledged opinion by Justice Mastro, the Second Department affirmed the defendant’s murder conviction.  One piece of evidence against the defendant was location-data based on the use of defendant’s cell phone.  The Second Department determined there was no need for a Frye hearing before expert testimony about cell-phone location was presented because no novel scientific theory was involved. The Second Department also determined prior crimes demonstrating a similar unique pattern to that of the charged offense were admissible to prove identity.  With respect to some of the prior crime evidence, which did not sufficiently match the pattern of the charged crime to be admissible on the issue of identity, the erroneous admission of that evidence was deemed harmless. In discussing the prior-crime evidence, the court wrote:

In this case, the evidence of other crimes was offered to establish the defendant’s identity as [the victim’s] killer. Such evidence may be admitted if, as a threshold matter, the defendant’s identity is in issue and is not “conclusively established” by other evidence …, and it is demonstrated by clear and convincing evidence that the defendant is the same person who committed the other crimes …. Here, it cannot be said that the defendant’s identity as the killer was conclusively established so as to warrant the preclusion of other crimes evidence to prove identity. Indeed, while the evidence that the defendant was the person who killed [the victim] was compelling, it was also entirely circumstantial. Moreover, the defendant vigorously contested the identification issue and presented as a defense the assertion that his employer… had been the actual killer. Thus, the identity of the murderer was a disputed issue in the case, and any admissible evidence tending to establish identification was relevant… . People v Littlejohn, 2013 NY Slip Op 07063, 2nd Dept 10-30-13

 

Judge’s Failure to Comply with CPL Re: Response to Jury Note Required Reversal

The Second Department held that the trial court’s failure to comply with Criminal Procedure Law 310.10 with respect to responding to a note from the jury concerning accomplice liability required reversal (despite the absence of an objection):

A new trial is required due to the trial court’s failure to meaningfully comply with CPL 310.10. During deliberations, the jury sent four notes to the trial court. The record reflects that, on the fourth occasion, the court did not disclose the contents of the note to the prosecutor and defense counsel until serially reading, and immediately responding to, the questions contained therein in the presence of the jury. All three of the questions in this note concerned the subject of accomplice liability.

The jury’s requests for further explanation of the meaning of accomplice liability within the context of this case required a “substantive response”, rather than a merely “ministerial” one … . As such, the trial court’s failure to afford defense counsel “the opportunity to provide suggestions” … regarding the court’s responses to the jury’s questions constituted “a mode of proceedings error . . . requiring reversal” …, despite defense counsel’s failure to object to the trial court’s handling of the jury’s fourth note … .  People v Gadson, 2013 NY Slip Op 07059, 2nd Dept 10-30-13

 

(Harmless) Error for Prosecutor to Ask If Other Witnesses’ Testimony Was Untrue and to Ask About Defendant’s Silence Upon Apprehension

The Second Department noted that it was error for the prosecutor to ask defendant on cross-examination whether testimony which contradicted defendant’s was untrue, and to ask about his silence after he was apprehended. The errors were deemed harmless, however:

The defendant correctly contends that the prosecutor improperly asked him on cross-examination whether a prosecution witness’s testimony was “not true” because it contradicted the defendant’s recollection of events… . We also agree with the defendant that the prosecutor improperly cross-examined him about his silence when he was apprehended by the police …. However, under the facts of this case, the errors were harmless and did not deprive the defendant of a fair trial … . Indeed, with respect to the questions concerning the defendant’s silence after being apprehended, the trial court alleviated any prejudice by sustaining defense counsel’s objections to the two offending questions, striking the second question and answer from the record, and directing the jury to disregard the second question and answer. People v Cosme, 2013 NY Slip Op 07057, 2nd Dept 10-30-13

 

Decedent’s Acknowledgment of Paternity of Nonmarital Child Precluded Objections to Distribution by Sibling

In finding that the decedent’s brother did not have standing to raise objections to the distribution of an estate because the decedent had sufficiently acknowledged paternity of at least one nonmarital child, the Second Department wrote:

…[T]he appellant, in his capacity as a sibling of the decedent, had no standing to raise objections unless he could be considered a distributee of the decedent’s estate. Siblings, who are defined as issue of the decedent’s parents, are only distributees if the decedent dies without issue (see EPTL 4-1.1[a][3]). If the decedent here was survived by any issue, the appellant, in his capacity as a sibling of the decedent, does not have standing as a person interested in the estate (see SCPA 103[39]).

Since the decedent died after April 28, 2010, EPTL 4-1.2, as amended in 2010, is applicable (see L 2010, ch 64). That provision states, among other things, that a nonmarital child may inherit from his or her father and paternal kindred, if paternity was established during the decedent’s lifetime or “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own” (emphasis added). The affidavits in this case demonstrated that the decedent had at least one nonmarital child whom he openly and notoriously acknowledged as his own. As this Court noted …, “[t]o establish an open and notorious acknowledgment of paternity, there is no requirement that the putative father disclose paternity to all his friends and relatives. An acknowledgment of paternity in the community in which the child lives is sufficient.” Matter of Reape, 2013 NY Slip Op 07048, 2nd Dept 10-30-13

 

Effect of Ambiguity in Easement Explained

In finding there were triable issues of fact, the Second Department explained the effect of ambiguity in the wording of easements:

The extent of an easement claimed under a grant is generally determined by the language used in the grant … . However, where the language of the grant is ambiguous or unclear, the court will consider surrounding circumstances tending to show the grantor’s intent in creating the easement … . Here, the language of the grant creating an easement in favor of the Clemensens’ property for “ingress and egress over the continuation of [the] private roadway as now or hereinafter located to the Hudson River” is ambiguous.  Menucha of Nyack, LLC v Fisher, 2013 NY Slip Op 07015, 2nd Dept 10-30-13

 

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No Ambiguity in Contract; No Resort to Extrinsic Evidence

In affirming the grant of defendant’s motion for summary judgment in a contract action, the Second Department explained the analytical criteria concerning whether extrinsic evidence should be considered:

“[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing” … . Thus, “before looking to evidence of what was in the parties’ minds, a court must give due weight to what was in their contract” … . “A contract should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases” … . “Whether a contract is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous” … . “Moreover, courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” … .

Here, the plaintiff failed to show any ambiguity in the subject contract that would permit consideration of the proffered extrinsic evidence of an alleged oral agreement to clarify the meaning of [a] term … .  Outstanding Transp Inc v Interagency Council of Mental Retardation & Dev Disabilities, Inc, 2013 NY Slip Op 07020, 2nd Dept 10-30-13

 

 

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