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Elements of Conversion, Moneys Had and Received and Breach of Fiduciary Duty Causes of Action Described/Equitable Estoppel Did Not Apply to Toll Applicable Statutes of Limitations

The Third Department explained the elements of causes of action for conversion, aiding and abetting conversion, moneys had and received, breach of fiduciary duty, and aiding and abetting breach of a fiduciary duty.  The Third Department further held that the doctrine equitable estoppel did not toll the applicable statutes of limitations and delineates what the applicable statutes of limitations are.  With respect to conversion, moneys had and received and equitable estoppel, the court wrote:

“Conversion is an unauthorized exercise of dominion and control over” someone else’s property that “interferes with and is in defiance of the superior possessory right of the owner or another person” … . A claim can exist for aiding and abetting conversion if the aider-abettor has actual knowledge that the person who directly converted the plaintiff’s property did not own that property … . Here, the complaint alleges that defendant knew of and acquiesced in Jaques’ unauthorized personal purchases from plaintiff’s accounts, that the purchased items were delivered to and used to improve defendants’ home, and that defendant accepted the benefits of these converted items. These allegations stated a cause of action against defendant for aiding and abetting conversion. * * *

Plaintiff properly stated a cause of action against defendant for moneys had and received. The elements of such a cause of action are that the defendant received money belonging to the plaintiff and benefitted from that money, and that equity and good conscience will not permit the defendant to keep the money … . The complaint alleges that money stolen from plaintiff by Jaques was used to improve and maintain defendants’ home, and that defendant consented to these actions. Accepting the allegations as true, and reasonably inferring that the use of this money provided a benefit to defendant, the third cause of action was sufficient. * * *

Supreme Court erred in concluding that the doctrine of equitable estoppel tolled the statutes of limitations as raised by defendant. Although the doctrine precludes a defendant from relying on a “statute of limitations defense when the plaintiff was prevented from commencing a timely action by reasonable reliance on the defendant’s fraud, misrepresentation or other affirmative misconduct . . ., equitable estoppel does not apply where the misrepresentation or act of concealment underlying the estoppel claim is the same act which forms the basis of [the] plaintiff’s underlying substantive cause[s] of action” … . Torrance Constr., Inc. v Jaques, 2015 NY Slip Op 02813, 3rd Dept 4-2-15

 

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Child No Longer Had Sufficient Connection to New York State—Custody-Enforcement Petition Properly Dismissed

The Third Department determined mother’s custody-enforcement petition was properly dismissed for lack of jurisdiction because the child no longer had a sufficient connection to New York.  The court noted that both Title II (jurisdiction) and Title III (enforcement) of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applied:

The mother’s main argument is that Family Court erred in applying title II of the UCCJEA, entitled “[j]urisdiction,” rather than title III, entitled “[e]nforcement.” While title III is not limited to enforcement of out-of-state custody determinations, and its “mechanisms . . . are presumptively available in any enforcement action” (Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 77, at 563; see Domestic Relations Law § 77), several of the sections within title III do refer or apply to custody determinations issued by courts in other states (see e.g. Domestic Relations Law §§ 77-b, 77-d, 77-e, 77-l). Similarly, title II has sections dealing with initial custody determinations and modification determinations (see Domestic Relations Law §§ 76, 76-b), neither of which is sought by the petition here, but the title overall is broader than those sections. Simply because the mother’s petition seeks enforcement of a custody determination, rather than modification, does not mean that the title addressing enforcement must be relied upon independently and exclusively, without any possible reference to the title addressing jurisdiction. Instead, courts can apply both the jurisdiction and enforcement portions of the UCCJEA, where applicable.

A New York court that made a child custody determination “has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that neither the child, [nor] the child and one parent, . . . have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a [1] [a]). Here, Family Court determined that the child had lived in Georgia with the father for more than two years and all of her medical and educational records and providers are in Georgia . While the mother and other family members reside in New York, the child did not return to New York — for visitation or any other reason — during the years that she was living in Georgia … . Thus, neither the child nor the father had a significant connection with New York, and substantial evidence regarding “the child’s care, protection, training, and personal relationships” is located in Georgia rather than New York (Domestic Relations Law § 76-a [1] [a]). According to the statute, after this determination, New York courts no longer have exclusive, continuing jurisdiction over the divorce judgment determining custody. Due to this determination, Family Court properly dismissed the mother’s petition for lack of jurisdiction … . Matter of Wengenroth v McGuire, 2015 NY Slip Op 02818, 3rd Dept 4-2-15

 

Course of Conduct Revealed the Terms of an Implied Contract—Complaint Dismissed

The Third Department determined defendant had demonstrated the terms of an implied contract by course of conduct and plaintiff failed to raise a triable question of fact to the contrary:

…[A]n implied contract exists when the parties have not entered into an express contract, but their course of conduct indicates that they have reached a meeting of the minds that is sufficient to constitute an enforceable contract … . A contract may be implied “as an inference from the facts and circumstances of [a] case, although not formally stated in words, and is derived from the presumed intention of the parties as indicated by their conduct” … . Here, the parties agree that they had a longstanding implied contract, but disagree as to whether the terms of this agreement included the amounts that plaintiff now seeks to collect. Plaintiff asserts that these amounts represent debts resulting from systematic underpayments by defendant dating back to 2006. However, defendant contends that it was the parties’ longstanding practice to resolve payment disputes shortly after each payment came due, and that plaintiff gave defendant no reason to believe that any such disagreements were not resolved or that any charges remained outstanding. * * *

…[T]he uncontradicted evidence reveals that, throughout the relationship, both parties treated all pricing disputes as resolved after plaintiff accepted payment and removed the charges from its statements. Plaintiff put forward no admissible evidence giving rise to issues of fact as to whether defendant was on notice that plaintiff considered any charges to be outstanding after this process was complete, or that defendant agreed, explicitly or implicitly, that it was liable for them. Thus, defendant established as a matter of law that there was no breach of contract, and its motion for summary judgment dismissing the cause of action for breach of contract should have been granted … . Coca-Cola Refreshments, USA, Inc. v Binghamton Giant Mkts., Inc., 2015 NY Slip Op 02834, 3rd Dept 4-2-15

 

Mayor Removed from Office for Unscrupulous Conduct

The Third Department affirmed the referee’s report recommending the removal of the respondent-mayor from office.  It was alleged the mayor used the authority of his office to attempt to prevent his prosecution in a criminal matter:

Public Officers Law § 36 provides a means by which a public officer for a town or village may be removed for “unscrupulous conduct or gross dereliction of duty or conduct that . . . connotes a pattern of misconduct and abuse of authority” … . To warrant removal, an official’s misconduct must amount to more than minor violations and must consist of “self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” … . When this matter was previously before this Court, we found that certain allegations against respondent, if proven, would demonstrate a sufficiently serious pattern of abuse of authority and misbehavior to warrant his removal … . In a detailed report, the Referee determined that respondent had committed a number of acts of misconduct that were sufficient to warrant his removal. Although the Referee’s findings are not binding upon this Court, they serve “to inform [our] conscience” … and, upon our independent review, we find that removal is warranted.

The first of the allegations … was a claim that respondent had refused to provide funding for the Village police department in an effort to influence the disposition of certain criminal charges against him … . * * *

Petitioners [also] allege that respondent sought “to use his position as Mayor and Village Manager to obtain ‘special treatment’ from the Village’s police department with respect to his various criminal charges and has repeatedly threatened various local law enforcement officials with termination or disciplinary action for pursuing such charges against him” … . Matter of Greco v Jenkins, 2015 NY Slip Op 02815, 3rd Dept 4-2-15

 

Conviction Based Upon a Plea Allocution In Which Defendant Was Not Informed of the Period of Post-Release Supervision Can Not Be Used as a Predicate Violent Felony for Purposes of Sentencing as a Persistent Violent Felony Offender

The Third Department determined a conviction based upon a plea allocution in which defendant was not informed of the period of post-release supervision (PRS) could not serve as a predicate felony for sentencing as persistent violent felony offender:

Defendant challenges the use of his 1999 conviction as a predicate violent felony, asserting that at the time of his plea to that charge he was not informed that the resulting sentence would include a mandatory period of postrelease supervision (hereinafter PRS). “Notwithstanding his failure to appeal from the [1999] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained” … . It is well established that a court must advise a defendant of the direct consequences of a plea prior to sentencing, specifically including the existence and duration of any PRS requirement … .

Here, the transcript of defendant’s 1999 plea allocution reveals that he was not advised that his plea would result in a mandatory period of PRS. Rather, defendant was first informed about the PRS through the court’s pronouncement of his sentence. Defendant made comments expressing his surprise as to the PRS immediately thereafter, but he was not afforded an opportunity to withdraw his plea, either during his original sentencing or when he was later resentenced to adjust the duration of the PRS to conform with the requirements of Penal Law § 70.45. Given the apparent infirmities in defendant’s 1999 plea allocution, we find that County Court erred in accepting the resulting conviction as a predicate violent felony for the purpose of sentencing defendant as a persistent violent felony offender … . People v Brewington, 2015 NY Slip Op 02805, 3rd Dept 4-2-15

 

Juror Had Personal/Professional Relationships with Two Prosecution Witnesses—For Cause Challenge Should Have Been Granted

The Third Department determined the defendant’s conviction must be reversed because a juror had personal/professional relationships with two of the prosecution witnesses and defendant’s for cause challenge to the juror was denied:

A juror whose relationship with a potential witness is so close “that it is likely to preclude him [or her] from rendering an impartial verdict” (CPL 270.20 [1] [c]) must be excused even if the juror states that he or she can be impartial, because “the risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” … . In determining whether a relationship is so close as to require disqualification, a court should consider factors “such as the frequency, recency or currency of the contact, whether it was direct contact, . . . the nature of the relationship as personal and/or professional . . . [and] any facet of the relationship likely to preclude the prospective juror from being impartial” … . As to the first witness, a former working relationship, without more, will not necessarily give rise to implied bias requiring disqualification … . Here, however, the juror described the relationship as more than merely professional; he stated that he knew the witness well, had discussed many subjects with him, had strong feelings about him and tended to believe him, and he volunteered that he was concerned as to whether the relationship would affect his judgment. The juror’s longstanding social relationship with the second witness was sufficiently close that the witness was aware that the juror had been called to jury duty on the case he had investigated, and sufficiently current that the juror and witness had spoken only a few days before the trial. Thus, this relationship, like that with the first witness, “was far more than a ‘nodding acquaintance'” … . Failure to excuse the juror could have “create[d] the perception that the accused might not receive a fair trial before an impartial finder of fact” … . Accordingly, based upon these two relationships, defendant’s challenge for cause should have been granted. People v Hamilton, 2015 NY Slip Op 02804, 3rd Dept 4-2-15

 

Statutory Provision that the Gaming Commission “Shall” Render a Determination Within 30 Days After a Hearing Is “Directory” Not “Mandatory”—A Late Determination Will Not Be Annulled Absent Prejudice

The Third Department determined Supreme Court erred when it annulled the suspension of petitioner’s license to train and own horses because the NYS Gaming Commission did not render a determination within 30 days of the hearing as required by Racing, Pari-Mutuel Wagering and Breeding Law 321.  The Third Department determined the 30-day time-limit was not mandatory and petitioner could only seek relief for a violation of section 321 if he could show prejudice related to the delay:

Racing, Pari-Mutuel Wagering and Breeding Law § 321 provides that, when respondent suspends a harness racing participant’s license, the licensee may demand a hearing and, “[w]ithin thirty days after the conclusion of such hearing, [respondent] shall make a final order in writing.” The use of “shall” is not conclusive, however, inasmuch as the statute does not impose any limitation on respondent’s power to act or provide for any consequences for the failure to comply with the time limit … . Nor has petitioner cited any legislative history, and we are not aware of any, suggesting that the 30-day provision in the statute was intended to be mandatory. Rather, at the time this provision was enacted, similar language in the Alcoholic Beverage Control Law had been judicially determined to be directory … , yet the Legislature imposed no additional language limiting respondent’s power to act when it later enacted Racing, Pari-Mutuel Wagering and Breeding Law § 321.

Where, as here, an agency fails to follow a procedural provision that is merely directory, the subsequent determination should only be judicially annulled when the challenger can “show that substantial prejudice resulted from the agency’s noncompliance” … . Matter of Pena v New York State Gaming Commn., 2015 NY Slip Op 02821, 3rd Dept 4-2-15

 

Jury Instruction Reversed Burden of Proof—New Trial Ordered

The Third Department determined defendant’s conviction must be reversed because the trial court’s instruction to the jury reversed the burden of proof.  The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law  353(a)(1):

….[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action … . Without question, the People bear the burden of proving a defendant’s guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including “depraved” and “sadistic,” the court determined that it would “be beneficial . . . to once again go over the definition of aggravated cruelty.” In doing so, however, the court advised the jury: “Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty.” This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial … . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15

 

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Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant’s Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence

The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant’s eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another’s mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:

Given the mistake by all involved in the plea proceeding, and counsel’s failure to provide meaningful representation on this issue, we agree with defendant’s contention that his motion to withdraw his guilty plea should have been granted. * * *

… [A] trial court is not obligated to conduct a suppression hearing “unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure” … . Pertinent here, “an overnight guest has an expectation of privacy in the host’s home” and, thus, standing to contest a search of that home … . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search… . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15

 

After Hours Off-Premises Fight With Co-Employee Can Constitute Disqualifying Misconduct

The Third Department determined that a fight with a co-employee after hours at a bar could constitute disqualifying misconduct if the fight was connected with claimant’s employment.  Because the Board, which granted unemployment benefits, based its determination on where the fight occurred, the matter was remitted:

“Fighting with a coworker, regardless of who initiates the confrontation, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits” … . Claimant, moreover, was aware that the employer considered fighting to be a major infraction and that it could result in his termination. It is true that the fight occurred at a bar outside of work hours but, in that regard, a claimant is disqualified from receiving benefits whenever his or her misconduct occurs “in connection with” his or her employment (Labor Law § 593 [3]…). Claimant was accordingly obliged, “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation” … . Therefore, the relevant question is not where or when the attack occurred, but whether it was connected to claimant’s employment … . Inasmuch as “the Board failed to address this relevant issue, its decision must be reversed and the matter remitted for further development of the record” … . Matter of Moniz (Nucor Steel Auburn, Inc.–Commissioner of Labor), 2015 NY Slip Op 02534, 3rd Dept 3-26-15

 

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