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Court’s Imposition of Restitution at Sentencing Required Reversal Because Restitution Was Not Part of Plea Agreement

The Second Department determined the trial court’s imposition of restitution at sentencing, where restitution was not part of the plea agreement, required that the defendant be given the opportunity to withdraw his plea or to accept the enhanced sentence:

Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution. Accordingly, at sentencing, the defendant should have been “given an opportunity either to withdraw his plea or to accept the enhanced sentence that included both restitution and a prison sentence … or for the court to impose the agreed-upon sentence.  People Poznanski, 2013 NY Slip Op 02272, 2008-06938, Ind No 2672/06, 2nd Dept 4-3-13

 

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28-Hours Between Arrest and Arraignment Okay

The Second Department determined a 28-hour delay between arrest and arraignment did not render defendant’s confession involuntary:

Approximately 28 hours elapsed between the time the police arrested the defendant and the time the defendant made the statement sought to be suppressed. While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant’s confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession … . The record does not support the defendant’s claim that the police unnecessarily delayed his arraignment. Here, the delay in arraigning the defendant was attributable to the time it took the police to conduct a thorough investigation and not to a strategically designed plan to permit the defendant to be questioned outside the presence of counsel … . People v Lin, 2013 NY Slip Op 02267, 2008-07244, Ind No 1705/05, 2nd Dept 4-3-13

SUPPRESS, SUPPRESSION

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Detective’s Testimony About Statement Made by Nontestifying Co-Defendant Violated Defendant’s Right of Confrontation

The Second Department reversed defendant’s conviction because a detective was allowed to testify about a statement made by a nontestifying codefendant in violation of the defendant’s right of confrontation under Crawford:

…[O]ver the defendant’s objection, the trial court allowed the prosecutor to elicit, from a detective, the statement of a nontestifying codefendant that the defendant was in the codefendant’s vehicle on the night of the incident. As the People correctly concede, this violated the defendant’s right of confrontation, secured to him by the Sixth Amendment to the United States Constitution … . This error was compounded when, on summation, the prosecutor argued that the codefendant’s statement established the defendant’s presence at the scene of the incident. Since the remaining evidence establishing the defendant’s identity as one of the assailants was not overwhelming, the error cannot be deemed harmless beyond a reasonable doubt… . People v Andujar, 2013 NY Slip Op 02261, 2009-06561, Ind No 1124/06, 2nd Dept 4-3-13

 

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Late Notice of Claim Disallowed

In finding the trial court abused its discretion in granting plaintiff’s motion for leave to file a late notice of claim, the Second Department noted that (1) serving the wrong party, i.e., law office failure, was not an acceptable excuse, (2) there was no demonstration by the plaintiffs that the (potential) defendant had actual knowledge of the facts of the claim, and (3) there was no demonstration by the plaintiffs that the (potential) defendant was not prejudiced by the delay in its ability to conduct a thorough investigation.  Peters-Heenpella v Wynn, 2013 NY Slip Op 02233, 2012-02561, Inex No 19749/11, 2nd Dept 4-3-13

 

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Late Notice of Claim Allowed in Absence of Reasonable Excuse

In affirming the granting of a petition to file a late notice of claim, in spite of the absence of a reasonable excuse for a timely filing, the Second Department wrote:

…[T]he City defendants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose, as indicated by an affidavit from the petitioner, wherein she stated that immediately following her son’s injury, a teacher’s aide took her son to the hospital where he was admitted and underwent surgery, and remained for two weeks. The petitioner further stated that within one month after the incident, she told the dean of the school that she was upset that her son was permitted to play tackle football without safety equipment during gym class, and that she wanted to make a claim against the school … . Furthermore, the City defendants would not be substantially prejudiced in their ability to maintain a defense. Although the petitioner failed to provide a reasonable excuse for failing to timely serve a notice of claim, under the circumstances of this case, that is not fatal to the petition … .   Matter of McLeod v City of New York, 2013 NY Slip Op 02251, 2012-03238, Index No 25950/11, 2nd Dept 4-3-13

 

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Bank’s Duty With Respect to Negligent Dishonoring of a Cashier’s Check 

The plaintiff’s sued in negligence based on the defendants’ dishonoring of a cashier’s check.  The Second Department affirmed the dismissal of the negligence counts:

The plaintiff’s first three causes of action were premised upon the theory that it suffered damages as a result of the defendants’ negligence. “To establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant’s part to plaintiff, breach of the duty and damages” (. As relevant here, “[t]he duty of a payor bank . . . to a noncustomer depositor of a check is derived solely from UCC 4-301 and 4-302” … . In this case, where the defendants were together alleged to be the payor bank (see UCC 4-105[b]) that was not also the depository bank (see UCC 4-105[a]), they were accountable for paying the amount of the cashier’s check, whether properly payable or not, if they “retain[ed] the item beyond midnight of the banking day of receipt without settling for it” (UCC 4-302[a]), or, if after authorizing a timely provisional settlement, they failed to revoke such settlement prior to making final payment and before the “[m]idnight deadline” (UCC 4-104[1][h]), by either returning the check, or sending written notice of dishonor or nonpayment (see UCC 4-301, 4-302). Thus, the only duty which the defendants owed to the plaintiff was to pay the check, return the check, or send notice of dishonor … . As the complaint failed to allege that, upon the defendants’ failure to pay the check, they breached their duty to either return the check or send notice of dishonor, the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the first three causes of action, all of which sounded in negligence.  Kenin Kerveng Tung, PC v JP Morgan Chase & Co, 2013 NY Slip Op 02223, 2011-11371, 2012-040089, Index No 11885/11, 2nd Dept, 4-3-13

 

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No Need to Be a Shareholder to Bring an Action Pursuant to BCL 720(b)

The Second Department noted there is no need to be a shareholder at the time a disputed resolution was adopted to bring an action for waste or breach of fiduciary duty pursuant to Business Corporation Law 720(b):

Unlike Business Corporation Law § 626, which authorizes a shareholder to bring a derivative action in the right of the corporation, Business Corporation Law § 720(b) authorizes a corporation, or an officer or director thereof, to commence an action to redress corporate waste or breach of fiduciary duty owed by officers and directors of the corporation … . While Business Corporation Law § 626(b) requires the plaintiff to be a shareholder at the time of the transaction of which he or she complains, there is no similar rule when a corporation, a director, or an officer commences an action pursuant to Business Corporation Law § 720(b) … . Gabel v Gabel, 2013 NY Slip Op 02050, 2011-10621, Index No 9839/10, 2nd Dept 3-27-13

 

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Criteria for 1983 Action Against Municipality Based On Policy or Custom

In reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context:

… [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of “(1) an official policy or custom [on the part of a municipal defendant] that (2) cause[d] the claimant to be subjected to (3) a denial of a constitutional right” … . “For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ]or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers'” …, or have occurred pursuant to a practice “so permanent and well settled as to constitute a custom or usage’ with the force of law” … .

“A municipal custom or policy can be shown by establishing that an official who is a final policy maker directly committed or commanded the violation of the plaintiff’s rights” … . Liability for a violation of 42 USC § 1983 may be predicated on “a single act, as long as it is the act of an official authorized to decide policy in that area” … .  Bassett v City of Rye, 2013 NY Slip Op 02037, 2011-10149, Index No 20430/05, 2nd Dept 3-27-13

 

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Assisting Resident Can Not Be Sued for Malpractice

In dismissing a medical malpractice complaint against a resident who assisted another doctor during surgery, the Second Department wrote:

A resident or fellow who is supervised by a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice unless the resident or fellow knows that the supervising doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, or the resident or fellow commits an independent act that constitutes a departure from accepted medical practice …. Poter v Adams, 2014 NY Slip Op 02061, 2012-03922, Index No 27069/09, 2nd Dept 3-27-13

 

Reapplication for Visitation Can Not Be Conditioned on Counseling or Treatment

In reversing Family Court’s denial of a petition for visitation by a noncustodial parent without a hearing, the Second Department determined a hearing must held and no counseling or treatment can be ordered as a condition of future visitation:

“[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child” … . Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child … . * * *

Moreover, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” … .  Matter of Lew v Lew, 2013 NY Slip Op 02076, 2012-01599, Docket No V-6403/11, 2nd Dept 3-27-13

 

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