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PLAINTIFF SUED YANKEE TRAILS FIVE DAYS BEFORE THE STATUTE OF LIMITATIONS RAN IN THIS BUS TRAFFIC ACCIDENT CASE; THE OWNER OF THE BUS WAS ACTUALLY YANKEE TRAILS WORLD TOURS, A COMPANY WITH A DIFFERENT ADDRESS AND CEO; PLAINTIFF’S MOTIONS TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT AND TO AMEND THE COMPLAINT TO SUBSTITUTE THE CORRECT DEFENDANT, MADE AFTER THE STATUTE HAD RUN, SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined plaintiff should not have been allowed to have more time to serve defendant and amend the complaint to substitute the correct defendant. The action stemmed from a traffic accident involving a bus owned by Yankee Trails. Five days before the statute of limitations ran, plaintiff commenced an action against Yankee Trails World Tours, a different corporation with different addresses and different chief executive officers:

… [W]hether relief pursuant to CPLR 306-b and 305 (c) is available is not merely a matter of discretion. Significantly, “CPLR 306-b cannot be used to extend the time for service against a defendant as to which the action was never validly commenced” … . Similarly, although a court may allow amendment of a summons to correct the name of a defendant pursuant to CPLR 305 (c), such remedy is not available where a plaintiff seeks to substitute a defendant who has not been properly served … .

The fact that defendant and Yankee Trails use the same insurance carrier is of no significance in the circumstances presented; notably, the record reflects that the insurance carrier did not contact Yankee Trails until after the statute of limitations had expired. Nor may we consider plaintiff’s error a mere misnomer that would allow relief to be granted pursuant to CPLR 305 (c) and CPLR 306-b … . Upon this record, plaintiff’s attempt to “proceed against [Yankee Trails as] an unserved and entirely new defendant” after the statute of limitations had run should have been denied, as he failed to obtain jurisdiction over Yankee Trails for relief pursuant CPLR 306-b and, thus, to later amend the complaint pursuant to CPLR 305 … . Fadlalla v Yankee Trails World Tours, Inc., 2019 NY Slip Op 05044, Third Dept 6-20-19

 

ADMINISTRATIVE APPEAL OF THE DENIAL OF DEFENDANT’S APPLICATION FOR PAROLE WAS TAINTED BY INACCURATE INFORMATION ABOUT THE OFFENSES COMMITTED BY DEFENDANT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the administrative appeal of the denial of parole was tainted by inaccurate information about the offenses committed by defendant:

… [T]he claim asserted by petitioner is preserved as it could not have been raised upon administrative appeal. Specifically, petitioner challenges the fact that the administrative appeals unit relied upon inaccurate information regarding his criminal history in affirming the Board’s denial of parole. A review of the statement by the appeals unit inaccurately reported that petitioner murdered six, as opposed to four, people. “Because of the likelihood that such error may have affected” the decision to affirm the Board’s denial of petitioner’s request for parole release, proper administrative review is required … . Matter of Torres v Stanford, 2019 NY Slip Op 05043, Third Dept 6-20-19

 

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NO RECORD OF JUDGE’S DISCUSSION OF A JURY NOTE WITH COUNSEL, MURDER CONVICTION REVERSED; DEFENDANT AUTHORIZED HIS AGENT TO SHOW HIS LETTER TO HIS ATTORNEY TO A THIRD PARTY, NO ATTORNEY-CLIENT PRIVILEGE; SENTENCES CANNOT BE CONSECUTIVE FOR CRIMES WITH THE SAME ACTUS REUS (THIRD DEPT).

The Third Department determined (1) because there was no record of the judge’s discussion of a jury note with counsel, the murder conviction (the only count to which the jury note was relevant) must be reversed. (2) although defendant’s girlfriend was defendant’s agent for the purpose of delivering defendant’s letter, which was mailed to her, to his attorney, there was evidence defendant authorized his girlfriend’s mother to read the letter. therefore the attorney-client privilege was lost, (3) the unauthorized use of a vehicle charge has the same actus reus as the robbery and grand larceny charges, therefore the sentence for unauthorized use of a vehicle cannot run consecutively with the sentences for robbery and grand larceny, but it can run consecutively to the sentences for the burglary and criminal possession of stolen property charges:

A divided Court of Appeals has held that meaningful notice is not provided where there is no record indicating that counsel was informed of the “precise contents” of the note before the response is given to the jury, or where the trial court paraphrases or summarizes a jury note …. Given the court’s statement to the jury that it had an off-the-record conversation with counsel regarding the note, it would not be unreasonable to believe that County Court had informed counsel of the note’s precise contents. However, the record contains no specific indication that the court provided counsel with the precise content of the note before it delivered its response to the jury, nor was the note read verbatim on the record before the response was given. Thus, the record fails to establish that counsel had the opportunity to participate in the formation of the court’s response to the jury’s substantive inquiry.  * * *

In these circumstances, we conclude that [defendant’s girlfriend]  was acting as defendant’s agent. Thus, whether the letter was protected by the attorney-client privilege turns on whether defendant had a reasonable expectation of confidentiality when he sent it to [her]. In that regard, there was contradictory evidence regarding whether defendant authorized [her] to share a copy of the letter with her mother, which County Court resolved by determining that defendant had authorized disclosure to [her] mother … . The determination that defendant specifically authorized disclosure of the letter to a third party, i.e., [his girlfriend’s] mother, established that defendant had no reasonable expectation of confidentiality and, therefore, defeated the attorney-client privilege. Thus, County Court did not err in admitting the letter. People v Henry, 2019 NY Slip Op 05024, Third Dept 6-20-19

 

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DEFENDANT WAS NOT PROPERLY NOTIFIED OF THE ALLEGED VIOLATIONS OF PROBATION AND THE FINDING THAT DEFENDANT VIOLATED A CONDITION WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was not properly notified of alleged violations of probation and the proof did not support a finding that defendant violated a condition of probation:

Where a violation of probation is alleged to have occurred, a written statement must be filed with the court and provided to defendant “setting forth the condition or conditions of the sentence violated and a reasonable description of the time, place and manner in which the violation occurred” (CPL 410.70 [2] …). Here, the details of the alleged violations in the uniform court report only included the   that defendant violated condition 2, which required her to obey all state and federal laws, by engaging in conduct that led to her September 2015 and March 2016 arrests. Although a different section of the uniform court report summarizing defendant’s probation supervision referenced other incidents that County Court made findings with respect thereto, the uniform court report only alleged that defendant violated condition 2 of the terms of her probation (see CPL 410.70 [2]). Moreover, defendant’s probation officer acknowledged in her testimony that defendant was not charged in the uniform court report with violating conditions 8, 12 and 16. Notwithstanding the testimony that was allowed at the hearing with regard to conditions 8, 12 and 16, defendant was not provided with a written statement informing her that she was also being charged with violating these conditions of her probation. Accordingly, County Court’s finding that defendant violated these terms of her probation was improper (see CPL 410.70 [2]…). …

Condition 2 of the terms of defendant’s probation required her to obey all federal, state and local laws and notify her probation officer immediately if questioned or arrested by a law enforcement agency or if convicted of a new offense. In support of its allegation that defendant violated this condition, the People adduced the testimony of defendant’s probation officer who testified, in relevant part, that defendant notified her of both the September 2015 and March 2016 arrests and charges. Beyond the probation officer’s testimony that defendant had been arrested on two occasions, no additional evidence or proof was offered as to the underlying acts. Accordingly, County Court’s finding that defendant violated condition 2 of her probation was not supported by a preponderance of the evidence … . People v Johnson, 2019 NY Slip Op 05018, Third Dept 6-20-19

 

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LEGALLY INSUFFICIENT EVIDENCE THAT THE SUBSTANCE REFERENCED IN THE GRAND JURY TESTIMONY WAS COCAINE, INDICTMENT PROPERLY DISMISSED (THIRD DEPT).

The Third Department, in an appeal by the People, affirmed County Court’s dismissal of the indictment because there was legally insufficient evidence that the substance involved was cocaine:

“‘Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” (CPL 70.10 [1] …). “The reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted — and deferring all questions as to the weight or quality of the evidence — would warrant conviction” … . “[I]n a drug-related prosecution[, as we have here,] the People’s case is legally sufficient if the evidence provides a ‘reliable basis’ for inferring the presence of a controlled substance” … . “More than conclusory assertions that the defendant possessed a drug are required at the [g]rand [j]ury stage” … . …

The evidence presented to the grand jury consisted of sparse testimony from the CI and an investigator involved in the controlled transactions, with most of the substance of that testimony having been supplied through leading questions. As to the first transaction, the CI testified, in a conclusory manner, that he believed the substance to be crack cocaine, without providing any description of the substance or explanation for his belief … , and, with respect to the second transaction, the CI did not express any belief as to the nature of the substance he received from defendant … . Additionally, although the investigator testified that he received white chunky substances from the CI, his testimony surrounding the testing of those substances was sorely lacking. He did not provide any detail as to his training and experience in field testing, explain how field testing occurs or specifically identify what he did in this case to determine that both substances were cocaine. People v Carlin, 2019 NY Slip Op 04788, Third Dept 6-13-19

 

ATV’S ARE NOT MOTOR VEHICLES WITHIN THE MEANING OF PENAL LAW 125.13 (1) (FIRST DEGREE VEHICULAR MANSLAUGHTER); CONCURRENT INCLUSORY COUNTS OF PENAL LAW 125.13 (3) DISMISSED (THIRD DEPT).

The Third Department dismissed certain counts of the indictment which stemmed from an accident involving an ATV (all-terrain vehicle). A passenger in the ATV, driven by defendant, was thrown from the ATV and killed. Defendant was alleged to have been driving while intoxicated and was convicted of vehicular manslaughter in the first degree, vehicular manslaughter in the second degree, aggravated driving while intoxicated and driving while intoxicated. The Third Department determined that one of the first degree vehicular manslaughter counts must be dismissed because ATV’s are not motor vehicles within the meaning of that statute (Penal Law 125.13 (1)).  The court also found that three concurrent inclusory counts must be dismissed:

ATVs are specifically excluded by the plain language of the relevant definition of motor vehicle. As relevant herein, the Penal Law defines “vehicle” to include a “motor vehicle,” which is further defined in the Vehicle and Traffic Law as “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except. . . [ATVs] as defined in [Vehicle and Traffic Law] article [48-B]” (Vehicle and Traffic Law § 125 …; see Penal Law § 10.00 [14]). This specific exclusion of ATVs from the definition of motor vehicle is further evident from two statutes that contain provisions that would be unnecessary if ATVs were included in the definition of motor vehicle. First, the crime of vehicular manslaughter in the second degree contains separate provisions for incidents that arise from the operation of motor vehicles (see Penal Law § 125.12 [1]) and ATVs (see Penal Law § 125.12 [3]) and, second, the Vehicle and Traffic Law contains a provision specifically providing that ATVs are motor vehicles for the purpose of Vehicle and Traffic Law article 31, which prohibits the intoxicated operation of a motor vehicle (see Vehicle and Traffic Law § 2404 [5]). Thus, we are constrained to conclude that ATVs are not motor vehicles for purposes of the Penal Law. Accordingly, the weight of the evidence does not support defendant’s conviction for vehicular manslaughter in the first degree under Penal Law § 125.13 (1) (count 1). * * *

Defendant contends that his convictions under counts 3, 4, 5, 6 and 7 must be dismissed as inclusory concurrent counts of the conviction of vehicular manslaughter in the first degree under count 2 (see CPL 300.40 [3] [b]). “Concurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater” (CPL 300.30 [4]). The People concede that defendant’s conviction of vehicular manslaughter in the first degree under count 2 requires that counts 3, 4, 6 and 7 be dismissed as inclusory concurrent counts. However, they accurately note that count 5 — charging aggravated driving while intoxicated — is not an inclusory concurrent count of vehicular manslaughter in the first degree as charged pursuant to Penal Law § 125.13 (3) in count 2 because it is possible to commit the latter without also committing the former … . People v Wager, 2019 NY Slip Op 04786, Third Dept 6-13-19

 

PLAINTIFF, WHO IS FIVE FOOT SEVEN, WAS INJURED WHEN A SIX FOOT HIGH STACK OF SCAFFOLDS PARTIALLY FELL ON HIM, THE HEIGHT DIFFERENTIAL WAS DEEMED DE MINIMUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined defendant’s motion for summary judgment in this Labor Law 240 (1) action was properly granted. Plaintiff, who is five feet seven inches tall, was injured when a six-foot high stack of scaffold partially fell over. The difference between the plaintiff’s height and the height of the stacked scaffolds was deemed de minimus:

In a previous appeal from an order deciding the parties’ motions for summary judgment, we determined that the scaffolding frames, estimated to be about six feet tall, established an elevation differential, but that questions of fact remained as to plaintiff’s actual height, “the number of scaffolds stacked in the pile that collapsed, the weight of each scaffold and the manner in which the scaffold(s) struck plaintiff” … . These details are significant because “[i]n determining whether an elevation differential is physically significant or de minimus, we must consider not only the height differential itself, but also ‘the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent'” … . …

To support their motion, defendants submitted the affidavit of Ernest Gailor, an engineer. Gailor opined that “the [five]-inch differential between the top of . . . plaintiff’s head and the maximum height of [the] frames . . . did not significantly contribute to the ‘total’ force at impact of the offending frame as it struck plaintiff.” * * *

In our view, defendants’ submissions established a prima facie basis to conclude that the elevation differential here was de minimus and that plaintiff’s claim falls outside the scope of Labor Law § 240 (1). Wright v Ellsworth Partners, LLC, 2019 NY Slip Op 04803, Third Dept 6-13-19

 

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THREE PRIOR INSURERS OF THE PROPERTY CONTAMINATED BY AN OIL SPILL, SUED BY THE CURRENT INSURER FOR INDEMNIFICATION, PROPERLY GRANTED SUMMARY JUDGMENT DISMISSING THE THIRD-PARTY COMPLAINT, ONE INSURER HAD SPECIFICALLY EXCLUDED COVERAGE FOR THE CONTAMINANT, THE OTHER TWO WERE NOT PROMPTLY NOTIFIED OF THE CLAIM AS REQUIRED BY THEIR POLICIES (THIRD DEPT).

The Third Department determined the summary judgment motions brought by three prior insurers of the property contaminated by oil were properly granted. The three insurers, Arch, AAIC and NSC, were third-party defendants in an action for indemnification brought by the current insurer of the property, Utica Mutual. The Arch policy had a specific exclusion of coverage for the contaminant. Arch’s failure to comply with the filing requirement of Insurance Law 2307 did not void the exclusion because there was no evidence Arch violated any regulations or statutes. The actions against AAIC and NSC were properly dismissed because notification of the potential contamination claim by Utica was not made for three years after Utica was aware of the contamination:

… [The] evidence established that the petroleum cleanup and removal costs sought to be recovered by plaintiff arose out of, or were the result of, MTBE contamination at both the spill site and the Honeoye Municipal District Well and, thus, satisfied Arch’s prima facie burden of demonstrating that the allegations of the complaint fell completely within the MTBE exclusion … . …

… Insurance Law § 2307 … states that “no policy form shall be delivered or issued for delivery unless it has been filed with the superintendent [of financial services] and either he [or she] has approved it, or [30] days have elapsed and he [or she] has not disapproved it as misleading or violative of public policy” … . However, as Supreme Court correctly noted, the failure to file under Insurance Law § 2307 “does not, by itself, void the policy clause . . .[; rather,] such clause is void only if the substantive provisions of the clause are inconsistent with other statutes or regulations” … . …

… Utica Mutual failed to tender sufficient proof to raise a question of fact as to whether it was justifiably ignorant of AAIC’s and NSC’s prior insurance coverage. Indeed, despite having access to Kirkwood and Kirkwood’s records immediately after learning of the contamination and its purported cause, Utica Mutual produced no evidence to show that it made any effort to discover AAIC’s and NSC’s existence before July 2010, when Utica Mutual’s counsel sent a letter to Kirkwood’s former insurance broker seeking information regarding Kirkwood’s prior insurers. Utica Mutual provided no explanation as to why it waited until July 2010 to inquire about prior insurers. State of New York v Flora, 2019 NY Slip Op 04801, Third Dept 6-13-19

 

PETITIONER HAD AN EXTRAMARITAL AFFAIR WITH MOTHER WHO REMAINS MARRIED, PETITION FOR GENETIC TESTING PROPERLY DENIED BASED UPON THE PRESUMPTION OF LEGITIMACY AND THE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department determined Family Court properly denied the petitioner’s request for genetic testing, citing the presumption of legitimacy and the best interests of the child. Petitioner had an extramarital affair with mother, who remains married:

The testimony at the hearing established that respondents were married at all relevant times, including when the child was conceived and when the child was born. The husband was present at the child’s birth and was named on the child’s birth certificate as the father. Since the birth of the child, who was three years old at the time of the hearing, it is undisputed that the husband has taken an active role as a parent and has developed a strong and loving bond with the child … . The mother testified that she believes the husband to be the child’s biological father and, to date, the husband is the only father that the child has known. Although petitioner’s expert and the school social worker who testified on respondents’ behalf disagreed on the ultimate question of whether genetic testing should be performed, petitioner’s expert specifically qualified his recommendation, stating that, although he believed genetic testing should be performed, he “would not want that to suddenly mean that the child has to find [the results] out” and opined that, to do so at such a young age, would be “ill-advised” and that any such revelation should occur sometime “within [10] years” and “before puberty,” with the aid of “counseling or consultation.” Meanwhile, the social worker opined that, given the child’s young age, it would be confusing, traumatic and potentially disruptive to his development and ability to form proper attachments throughout the rest of his life should such information be revealed at the present time. Family Court also appropriately considered the hostility that petitioner harbors toward respondents in determining that granting petitioner’s application would only serve to create uncertainty and unnecessarily disrupt the child’s otherwise stable, loving and established family dynamic … . Matter of Mario WW. v Kristin XX., 2019 NY Slip Op 04798, Third Dept 6-13-19

 

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COUNTY COURT DENIED PETITIONER’S MOTION TO DISMISS AN INDICTMENT ON THE GROUND THE PEOPLE HAD LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE INDICTMENT AT THE TIME HE PLED GUILTY TO A PRIOR INDICTMENT (CPL 40.40); PETITIONER’S REMEDY IS DIRECT APPEAL, NOT THE INSTANT ARTICLE 78 PETITION SEEKING PROHIBITION OR MANDAMUS (THIRD DEPT).

The Third Department determined petitioner must seek review of the denial of a motion to dismiss an indictment pursuant to CPL 40.40 by direct appeal, not by the instant Article 78 action for prohibition or mandamus re: the district attorney and the judge. Petitioner moved to dismiss the indictment on the ground that the People had legally sufficient evidence to support the indictment at the time he pled guilty to a prior indictment. County Court denied that motion without a hearing, even though County Court noted it could not determine whether the People had legally sufficient evidence at the time petitioner pled guilty:

The District Attorney contends that petitioner may not obtain collateral review of County Court’s denial of his motion through a CPLR article 78 proceeding. We agree. “Neither [of the extraordinary remedies of] prohibition nor mandamus lies as a means to obtain collateral review of an alleged error of law particularly where, as here, there is an adequate remedy at law by way of a direct appeal” … . Any error in County Court’s decision denying petitioner’s motion to dismiss indictment No. 3 without a hearing is, at most, a mere error of law that does not justify the invocation of the extraordinary remedies sought … . Matter of Davis v Nichols, 2019 NY Slip Op 04794, Third Dept 6-13-19

 

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