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Notice to Admit Improperly Sought Admission at Heart of Case

The Second Department determined Supreme Court abused its discretion when it denied defendant’s motion for a protective order pursuant to CPLR 3103(a).  The plaintiff had sought a notice to admit that a vehicle owned by the defendant and operated by defendant’s employee ‘was in contact with the plaintiff.”  The Second Department wrote:

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial”…. Here, the plaintiff’s notice to admit improperly sought the defendant’s admission concerning a matter that went to the heart of the controversy in this case…. Moreover, ” the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial'” …. Accordingly, the Supreme Court should have granted the defendant’s motion for a protective order. Ramcharran v NY Airport Services LLC, 2013 NY Slip Op 05195, 2nd Dept 7-10-13

 

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Prosecutor Need Not Accept Defendant’s Stipulation in Lieu of DNA Test

The Second Department affirmed Supreme Court’s denial of an Article 78 petition seeking prohibition with respect to an order that petitioner allow a buccal swab for DNA testing.  The petitioner argued that his offer to stipulate his DNA matched the DNA on two firearms should preclude the test. The Second Department held that a prosecutor was under no obligation to accept the offer to stipulate:

“[A] court order to obtain a [bodily] sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable”…. “In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other” …. Here, the petitioner … contends that the People’s motion should have been denied on the ground that his offer to stipulate that his DNA matched the DNA recovered from the two firearms at issue provided a less intrusive method of obtaining the evidence. However, the law is manifestly clear that the People are under no obligation to accept an offer by a defendant to stipulate to a fact or to an element of a charged crime …, and “the decision as to whether to decline or accept such a stipulation lies wholly within the prosecutor’s discretion”…. Accordingly, since the petitioner has failed to demonstrate a clear legal right to the extraordinary remedy of prohibition, his petition is denied … .  Matter of Johnson v Shillingford, 2013 NY slip Op 05212, 2nd Dept 7-10-13

 

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Therapeutic Dog Allowed In Court to Support Alleged Child Victim of Sexual Offenses During Trial Testimony

The Second Department, in a full-fledged opinion by Justice Sgroi, determined that the “courts of this State should permit the presence of a therapeutic ‘comfort dog’ in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.”  The defendant was charged with predatory sexual assault against a child.  The alleged victim was his daughter who 15 years old at the time of trial.  It was alleged that the victim twice became pregnant by the defendant and the defendant arranged for abortions in both instances.  The Second Department found support for its determination in Executive Law section 642-a (procedures making the judicial process less threatening to child victims).  The Second Department rejected defendant’s arguments that the presence of the dog violated his right to due process of law and right of confrontation.  People v Tohom, 2013 NY Slip Op 05234, 2nd Dept 7-10-13

 

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DNA Evidence Not Testimonial—No Denial of Right to Confrontation

In affirming defendant’s conviction, the Second Department noted that DNA evidence did not violate defendant’s right of confrontation because the challenged evidence was not testimonial:

[Defendant’s] right of confrontation (see US Const Sixth Amend) was not violated when an expert testified that a DNA profile produced by the Office of the Chief Medical Examiner (hereinafter OCME) from a sample of the decedent’s blood matched a DNA profile produced by the OCME from a sample of a stain on a pair of jeans given to the office by the police department. The DNA profiles were not testimonial …, but rather, were merely raw data that, standing alone, did not link the defendant to the crime… . The connection of the defendant to the crime was made by the testimony of police officers establishing that the defendant was wearing the subject jeans when arrested, and of the DNA expert, who testified that, based on his analysis, the two subject DNA profiles matched…. People v Pitre, 2013 NY slip Op 05231, 2nd Dept 7-10-13

 

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Refusal to Allow Relative’s Testimony Did Not Deny Right to Present a Defense

The Second Department determined defendant was not denied his right to present a defense by County Court’s refusal to allow defendant’s sister-in-law to testify:

A criminal defendant has a fundamental right to produce witnesses, and “absent a showing of bad faith, an application to produce witnesses whose testimony would be relevant to the defense should not be denied”…. However, a trial court may, in its discretion, exclude evidence that is of slight or remote significance, speculative, lacking a good-faith factual basis, or solely based on hearsay….

In the instant case, the proposed testimony of the defendant’s sister-in-law regarding the relationship between the defendant and his wife consisted largely of hearsay, was cumulative to other evidence, and was only marginally, if at all, relevant. Consequently, the County Court did not improvidently exercise its discretion in precluding that testimony, and that ruling did not deprive the defendant of the right to present a defense… .  People v Strzelecki, 2013 NY Slip Op 05233, 2nd Dept 7-10-13

 

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Action Properly Brought by Third Party Beneficiary of Indemnity Agreement

The Second Department affirmed Supreme Court’s denial of a motion to dismiss brought by a defendant who had entered an indemnity agreement with a judgment debtor.  The Second Department explained that plaintiff had stated a cause of action based upon plaintiff’s being a third-party beneficiary of the indemnity agreement:

Pursuant to CPLR 5227, a special proceeding may be commenced by a judgment creditor “against any person who it is shown is or will become indebted to the judgment debtor.” Such a proceeding is properly asserted against one who agreed to indemnify the judgment debtor in the underlying proceeding. The judgment creditor stands in the judgment debtor’s shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party… * * *.

Here …the judgment debtor … was not a party to the indemnification agreement. However, the Supreme Court properly determined that [the judgment debtor] was an intended third-party beneficiary of the indemnification agreement. Parties asserting third-party beneficiary rights under a contract must establish: (1) the existence of a valid and binding contract between other parties; (2) that the contract was intended for their benefit; and (3) that the benefit to them is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate them if the benefit is lost…. Where performance is rendered directly to a third party, it is presumed that the third party is an intended beneficiary of the contract….

Indemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed…. Here, however, the intent … to benefit [the judgment debtor] is apparent from the face of the indemnification agreement… . Matter of White Plains Plaza Realty LLC, 2013 NY Slip Op 05220, 2nd Dept 7-10-13

Criteria Where Defendant Not Specifically Mentioned in Allegedly Defamatory Statement

In affirming Supreme Court’s dismissal of a defamation cause of action, the Second Department explained the plaintiff’s burden when the plaintiff is not specifically named in the allegedly defamatory statements:

While a plaintiff need not be specifically named in a publication to sustain a cause of action sounding in defamation, a plaintiff who is not specifically identified “must sustain the burden of pleading and proving that the defamatory statement referred to him or her” … .. “In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff”…. A court may grant a motion to dismiss a defamation cause of action if the complaint cannot support a finding that the statement refers to the plaintiff …. Indeed, the burden of pleading and proving that statements are ” of and concerning'” the plaintiff … is not a ” light one'”… . Dong v Hai, 2013 NY Slip Op 05191, 2nd Dept 7-10-13

 

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Criteria for Fraudulent Conveyance

In reversing Supreme Court, the Second Department determined the plaintiff was entitled to summary judgment in a fraudulent conveyance action.  The court explained the relevant legal principles as follows:

Pursuant to Debtor and Creditor Law § 276, [e]very conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors'” …. “Direct evidence of fraudulent intent is often elusive. Therefore, courts will consider badges of fraud,’ which are circumstances that accompany fraudulent transfers so commonly that their presence gives rise to an inference of intent”…. A plaintiff that successfully establishes actual intent to defraud is entitled to a reasonable attorney’s fee under Debtor and Creditor Law § 276-a …. * * *

The plaintiff presented evidence of badges of fraud, including, inter alia, a close relationship between the parties to the transaction, inadequate consideration for the transaction, and the retention of the benefit of the property by Elyahou, who continued to reside in the premises following the transfer… .  5706 Fifth Ave LLC v Louzieh, 2013 NY Slip Op 05187, 2nd Dept, 7-10-13

 

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Criteria for Causes of Action Discussed in Extensive Modification of Supreme Court’s Orders

In extensively modifying Supreme Court’s rulings in an action to foreclose a mechanic’s lien, to set aside alleged fraudulent conveyances pursuant to Debtor and Creditor Law section 273, and to recover damages for diversion of trust assets pursuant to article 3-a of the Lien Law, the Second Department explained (1) the effect of obtaining a bond on the Debtor/Creditor and Lien Law causes of action; when the Lien Law cause of action accrues; and (3) the Lien Law has an exception designed to protect purchasers of realty:

The Supreme Court improperly awarded judgment … to set aside conveyances of the property as fraudulent pursuant to Debtor and Creditor Law § 273. Once [defendant] “obtained a bond to discharge the mechanic’s lien, the debt no longer existed for the purposes of Debtor and Creditor Law § 273″… .

However, contrary to the appellants’ contention, the discharge of a mechanic’s lien by the filing of a bond is not equivalent to payment or discharge of a trust claim pursuant to Lien Law article 3-A … Further, contrary to the appellants’ contention, those causes of action were not time-barred by Lien Law § 77(2), which provides that no action to enforce a trust under article 3-A of the Lien Law “shall be maintainable if commenced more than one year after the completion of such improvement.” “The one-year period does not begin to run from the date of substantial completion, but from the date of completion of all work”… .

“While the Lien Law is generally designed to protect contractors, material providers and other classes of workers who supply labor or furnish materials, subdivision (5) of section 13 is an exception which is specifically designed to protect purchasers of realty”… . Holt Constr Corp v Grand Palais LLC, 2013 NY Slip Op 05189, 2nd Dept 7-10-13

 

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Family Offense Must Be Established by Fair Preponderance

The Second Department determined the family offense of attempted assault in the second degree had not been “established by a fair preponderance of the evidence” in Family Court:

A family offense must be established by a fair preponderance of the evidence (see Family Court Act § 832;…). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the credibility determinations of that court, which has the advantage of seeing and hearing the witnesses, are entitled to considerable deference on appeal” … .Here, a fair preponderance of the credible evidence did not support the Family Court’s determination that the appellant committed the family offense of attempted assault in the second degree (see Family Court Act §§ 812[1], 832; Penal Law §§ 110.00, 120.05[1]… .  Matter of Hubbard v Ponce DeLeon, 2013 NY slip Op 05211, 2nd Dept 7-10-13