By pleading guilty a defendant forfeits appellate review of a claim that his statutory right to a speedy trial pursuant to Criminal Procedure Law 30.30 was violated. However, a defendant’s constitutional speedy trial claim survives both a guilty plea and a waiver of the right to appeal. People v Franco, 2013 NY Slip Op 01570, 2009-10119, Ind No 10795/07, 2nd Dept. 3-13-13
Although the Second Department concluded it was harmless error, the Court noted that the trial court erred when it participated in reading back certain trial testimony to the jury. The Court wrote: “We take this opportunity to emphasize that ‘[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to [the] jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back’…”. People v Facey, 2012 NY Slip Op 01568, 2012-11829, Ind No 9839/08, 2nd Dept. 3-13-13
In a contract action, the Second Department laid out the black letter law on the interpretation of unambiguous language, the doctrine of “exclusio unius est exclusio alterious,” and the criteria for a declaratory judgment. The controversy concerned the amount of a bonus which was determined, according to the terms of the contract, by whether the plaintiff resigned or was fired, a disputed issue:
The defendant acknowledges that if the language of a written contract is free of ambiguity, the court must determine its meaning as a matter of law based upon the writing alone, without resort to extrinsic evidence …. Contrary to the defendant’s contention, the language of paragraph 4.2 clearly limits bonus compensation to a share of distributions based upon either the sale of all of RDL’s assets, or some of RDL’s assets. Pursuant to the doctrine of “exclusio unius est exclusio alterious,” which means that the expression of one thing is the exclusion of the other …, the references to the sale of assets implies that bonus compensation does not apply to distributions based upon something other than the sale of assets. If the parties had intended for bonus compensation to be based upon all distributions, these references to the sale of assets would have been unnecessary. * * * The courts may issue declaratory judgments declaring the rights of the parties only where there is a justiciable controversy …. There is no justiciable controversy warranting declaratory relief if the controversy is over a future event “beyond the control of the parties and may never occur” … . However, in the instant case, the future event is in the control of RDL …, and is likely to occur … . Therefore, the question of whether the defendant was discharged without cause or resigned constitutes a justiciable controversy, which must be resolved by the Supreme Court after a trial. Realtime Data, LLC v Melone, 2013 NY Slip Op 01540, 2011-11936, Index No 50021/10, 2nd Dept. 3-13-13
The Second Department determined that “detrimental reliance” does not need to be demonstrated to recover for misconduct by a notary public under Executive Law section 135 where the plaintiff does not allege fraud as the theory of recovery. The plaintiff in this case alleged the notary’s misconduct resulted in the recording of a forged deed which caused the subrogors to sustain damages. In reversing the trial court’s dismissal of the notarial-misconduct cause of action, the Second Department wrote:
Executive Law § 135 provides, in relevant part, that “[f]or any misconduct by a notary public in the performance of any of his powers such notary public shall be liable to the parties injured for all damages sustained by them.” Thus, the plain language of the statute does not require a showing of detrimental reliance … . Rather, a plaintiff seeking to recover under that section need only show that the notary engaged in notarial misconduct and that such misconduct was a proximate cause of the plaintiff’s injury … . Chicago Title Insurance Co. v LaPierre, 2013 NY Slip Op 01523, 2012-05101, Index No 15384/08, 2nd Dept. 3-13-13
The procedure for extending a real property lien which is based on a New York money judgment was explained by the Second Department:
Although a New York money judgment is enforceable for 20 years (see CPLR 211[b]), a real property lien resulting from the judgment is viable for only 10 years (see CPLR 5203[a]). For this reason, the Legislature enacted CPLR 5014 to give a judgment creditor an opportunity to extend the life of the lien by commencing an action for a renewal judgment … . “Pursuant to CPLR 5014(1), an action upon a money judgment may be maintained between the original parties where ten years have elapsed since the judgment was originally docketed” … . “An action may be commenced under subdivision one of this section during the year prior to the expiration of ten years since the first docketing of the judgment” (CPLR 5014). The plaintiff here established her prima facie entitlement to judgment as a matter of law awarding her a renewal judgment pursuant to CPLR 5014(1) by demonstrating the existence of the prior judgment, that the defendant was the judgment debtor, that the judgment was docketed at least nine years prior to the commencement of this action, and that the judgment remains partially or completely unsatisfied …. . Rose v Gulizia, 2013 NY Slip Op 01542, 2011-08302, Index No 40635/15, 2nd Dept. 3-13-13
One of the defendants in a personal injury action died. The plaintiff moved pursuant to CPLR 1015 to have Supreme Court appoint a temporary representative of the estate, and to have the temporary representative substituted for the deceased defendant. The defendants opposed the motion arguing that Surrogate’s Court was the appropriate forum for the appointment of a temporary administrator. In finding that Supreme Court could make the appointment, the Second Department wrote:
“In most instances the personal representative of the decedent’s estate should be substituted in the action” …. However, in the event no such representative exists, an appropriate appointment should be made and that individual should be substituted in place of the decedent … . “In determining who shall be substituted for the decedent, conflict of interest questions may be raised” … .
The Second Department, however, determined that the person Supreme Court appointed, the attorney for the insurance company defending the action, had a conflict of interest because the insurance company had disclaimed coverage for the subject accident. The matter was remitted for the appointment of a different temporary administrator. Dieye v Royal Blue Services, Inc., 2012 NY Slip Op 01527, 2012-03428, Index No 3392/09, 2nd Dept. 3-13-13
The grandmother and mother of a seven-month-old were found to have neglected the child by briefly leaving the child unattended in the kitchen sink with the water running when the hot water “spiked” causing burns. The mother and grandmother moved to dismiss the petition pursuant to Family Court Act 1051 (c) on the ground aid of the court was not required. The Second Department noted that the facts were sufficient to sustain the petition, but determined the petition should be dismissed because the aid of the court was not required. Following the incident the mother completed all the programs required by children’s services, the grandmother attended parenting classes with the mother voluntarily, the child was returned to the mother 18 months before the hearing, home visits confirmed the child was not left unattended and was bathed properly, and the hot water “spikes” had been eliminated. The Second Department wrote: “The foregoing demonstrates that the incident on which the petition was based was an isolated one, that the mother and grandmother have been rehabilitated, and that the child is no longer at risk of being neglected …”. Matter of Kayden H., 2013 NY Slip Op 01549, 2011-09702, 2011-09704, Docket No N-22472-09, 2nd Dept. 3-13-13
In reversing the trial court’s grant of a motion to set aside the verdict, the Second Department determined that the violation of an Administrative Code concerning stairway handrails could have been a factor in the injuries to the plaintiff. The plaintiff tried to stop his fall down a stairway but could not grab the handrail which was flush with the wall. Expert testimony established that a handrail flush to the wall was dangerous and defective. Cusumano v City of New York, 2012-00015, Index No 4207/01, Second Dept. 3-6-13
“Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies… . The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality…” . Because the City established it had not received prior written notification of the condition which caused plaintiff’s injuries it was entitled to judgment as a matter of law. Connor v City of New York, 2012-02970, Index No 30407/05, Second Dept. 3-6-13
“ ‘[I]n general, a hospital cannot be held vicariously liable for the negligence of a private attending physician’ … . Further, a hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice…’ “. Aronov v Soukkary, 2012-00155, Index No 2061/09, Second Dept. 3-6-13
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