You are here: / Third Department

Tag Archive for: Third Department

“Confidential Relationship” With Decedent Not Demonstrated As a Matter of Law

The Third Department determined Supreme Court properly ruled that petitioners had not demonstrated, as a matter of law,  the existence of a confidential relationship between the decedent and respondent. Where a confidential relationship is demonstrated, the stronger party has the burden of showing by clear and convinciing evidence that a particular transaction from which the stronger party benefitted was not the result of undue influence.  The court explained the operative criteria for a confidential relationship:

A confidential relationship is one that is “of such a character as to render it certain that [the parties] do not deal on terms of equality” … . Such inequality may occur from either one party’s “superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence” or from the other’s “weakness, dependence, or trust justifiably reposed” on the stronger party … .

The limited issue presented on this appeal is whether Supreme Court erred when it declined to find, as a matter of law, that there was a confidential relationship between respondent and decedent. The basis for petitioners’ claim that such a relationship existed was, in part, the familial relationship between respondent and decedent. A familial relationship, however, is not necessarily a confidential relationship … . Importantly, the existence of a confidential relationship is ordinarily a factual determination based upon “evidence of other facts or circumstances showing inequality or controlling influence”… . Matter of Bonczyk v Williams, 2014 NY Slip Op 05231, 3rd Dept 7-10-14

 

, ,

Party Moving for Summary Judgment May Not Submit Expert Affidavits With the Identity of the Expert Redacted

In the summary judgment context, the Third Department determined the moving party in a medical malpractice action, unlike the non-moving party, could not submit affidavits from experts with the names of the experts redacted:

In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to “tender[] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” … . Among other submissions, defendants provided an affidavit from a medical expert whose identity was redacted and who opined on the appropriateness of plaintiff’s medical care and the adequacy of the warnings given to plaintiff.efendants also submitted an unredacted version of the affidavit for Supreme Court’s in camera review. Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion … .

While the Legislature has allowed for some protection from disclosure of the identities of medical experts during “[t]rial preparation” (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts’ identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation …, the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action. Further, we see no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor … . Requiring a movant to reveal an expert’s identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion … . Further, any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions … . For these reasons, we will not consider the incompetent affidavit of defendants’ medical expert. Rivera v Albany Med Ctr Hosp, 2014 NY Slip Op 05236, 3rd Dept 7-10-14

 

Subsequent Action Which Included Claims Which Could Have Been Raised in the First Action Precluded by Doctrine of Res Judicata

The Third Department determined that a prior ruling had res judicata effect even though the subsequent action sought damages for a different period of time:

Under the doctrine of res judicata, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … , so long as “the party to be barred had a full and fair opportunity to litigate any cause of action arising out of the same transaction and the prior disposition was a final judgment on the merits” … . Thus, where those requirements have been met, if “a plaintiff in a later action brings a claim for damages that could have been presented in a prior [action] against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata” … . Stated another way, “when a plaintiff brings an action for only part of his [or her] cause of action, the judgment obtained in that action precludes him [or her] from bringing a second action for the residue of the claim” … .

Here, the record reflects that plaintiff had a full opportunity to litigate the issues relating to his small claim for unpaid wages in City Court and such court’s disposition was a final decision on the merits. It is also evident that the claim brought by plaintiff in City Court and the instant action arise out of the same series of transactions in connection with his work for defendants. Although the present action concerns wages allegedly owed for a different time period than the City Court claim, inasmuch as it had matured at the time that plaintiff commenced the prior action …, plaintiff could have also raised the current claim at that time … . Tovar v Tesoros Prop Mgt LLC, 2014 NY Slip Op 05233, 3rd Dept 7-10-14

 

Alleged Error Did Not Raise a Question of Jurisdiction or Constitute a Constitutional Defect—Therefore the Alleged Error Did Not Survive the Guilty Plea

The Third Department described the types of fundamental errors which survive a guilty plea. The prosecutor’s alleged failure to inform the grand jury of defendant’s request to call witnesses in not one of them:

By his plea of guilty, defendant forfeited this argument. “As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered” … . As relevant here, a claim “that the District Attorney did not inform the grand jury of defendant’s request to call witnesses to testify on his behalf as required by CPL 190.50 (6) . . . does not activate a question of jurisdiction or constitute a constitutional defect and, thus, does not survive a guilty plea” … . People v McCommons, 2014 NY Slip Op 05215, 3rd Dept 7-10-14

 

,

Failure to Comply with a Time-Limit for a Buy-Out in a Shareholders’ Agreement Was Trumped by the Overall Purpose of the Agreement—Shareholder Properly Compelled to Sell His Shares

The Third Department determined a shareholders’ agreement. although it did not address the particular problem at issue, must be read to avoid a result which would be at odds with the clear purposes of the agreement.  One of the three shareholders of the closely held corporation (the defendant) was convicted of a felony and the other shareholders terminated his employment and sought to buy his shares. The defendant sought to prohibit the buy-out by arguing it was untimely under the terms of the shareholders’ agreement.  Because the corporation distributed alcoholic beverages, if the defendant remained a shareholder the corporation would lose its distributor’s license:

A shareholders’ agreement — like any other contract — should be enforced according to its terms … . In so doing, “[t]he contract must be read as a whole to determine its purpose and intent, and it should be interpreted in a way [that] reconciles all its provisions, if possible” … . To that end, “the goal should be a practical construction of the language used so that the reasonable expectations of the parties are realized” …, and “the contract must be interpreted so as to give effect to, not nullify, its general or primary purpose” … .

Here, the shareholders’ agreement reflects “[t]he shareholders[‘] desire to establish a market value for their shares, to effectively control the management of the company, for their mutual best interests, and to protect against divisive relationships which would arise if outsiders with incompatible management philosophies gained interests in the company.” Consistent with that stated objective, the agreement further recognizes that “[t]he company is dependent upon and derives substantial benefit from the continued active interest and participation of those shareholders who participate in the management of the company.” In an attempt to preserve the closely-held nature of the corporation, the agreement provides that when a shareholder’s employment with the corporation ceases, “he or she shall be treated as though he or she were selling all of his or her shares under paragraph A of . . . [s]ection [t]wo [of the agreement],” which outlines the procedures to be followed when a shareholder, during the course of his or her lifetime, “transfer[s] any of his or her shares to anyone other than a family member.” In such case, the shareholder is to give notice of his or her intention to sell and, “[f]or a period of thirty [30] days after the notice is delivered, the [corporation] shall have an option to purchase all or any part of the offered shares on the payment terms specified in [s]ection [f]our [of the agreement].” If the corporation does not exercise such option, then the remaining shareholders are granted an additional 30-day option to purchase any or all of the available shares. * * *

…[R]eading the agreement as a whole and affording it a practical construction that is consistent with and gives proper effect to the parties’ stated intentions …, we are satisfied that Supreme Court properly granted plaintiffs’ motion to compel [defendant] to sell his shares to the corporation — even if that option to purchase was not timely exercised. To hold otherwise and permit [defendant] to retain his shares due to the asserted noncompliance with the time period set forth in the shareholders’ agreement not only would effectively rewrite the parties’ agreement and undermine its stated purpose, i.e., to retain managerial control within the closely-held family corporation, but would place the corporation at risk of losing its distributor’s license, thereby rendering its stock worthless… . A Cappione Inc v Cappione, 2014 NY Slip Op 05230, 3rd Dept 7-10-14

 

,

Court Erred In Failing to Hold a Restitution Hearing—No Support In Record for Amount Imposed

The Third Department determined County Court erred by imposing $100,000 restitution without a hearing.  The People had determined the $100,000 figure was excessive and had requested restitution in the approximate amount of $32,000:

….[W]e agree with defendant that County Court erred in ordering restitution in the amount of $100,000 without a hearing. By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]…). Defendant sufficiently preserved this challenge to the increased amount of restitution, in that defense counsel and the People questioned it at sentencing … . Upon review, we find that there is no evidence in the record to support the court’s imposition of $100,000 in restitution. To the contrary, at sentencing the People characterized such figure as “excessive,” stated that they “lacked sufficient documentation and proof” to support that amount, and proffered evidence supporting restitution in the amount of $32,240, a figure to which the victim, the court and defendant had all agreed. Further, there are statutory limits on the amount of restitution, which may be exceeded, as relevant here, provided “‘the amount in excess [is] limited to the return of the victim’s property, including money, or the equivalent value thereof'” … . Accordingly, the matter must be remitted for a restitution hearing or a redetermination of restitution consistent with the plea agreement. Given that “[a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” …, under the circumstances here, upon remittal, defendant must be afforded an opportunity to withdraw his guilty plea if a hearing is held and the amount of restitution imposed exceeds the originally agreed upon amount, i.e., $32,240. People v Pleasant, 2014 NY Slip Op 04981, 3rd Dept 7-3-14

 

People v Rudolph (Requiring Sentencing Court to Consider Youthful Offender Status for All Eligible Defendants) Applied Retroactively to 2008 Conviction (on Direct Appeal)

The Third Department determined the ruling in People v Rudolph (21 NY3d 497 [2013]), requiring that courts always consider youthful offender status for eligible defendants, applied retroactively to a 2008 conviction by guilty plea in which the defendant agreed he would not receive youthful offender status:

In People v Rudolph (supra), the Court of Appeals, overruling precedent, held that the statutory command in CPL 720.20 (1) that the sentencing court address youthful offender status when a defendant is eligible for such status “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request” (id. at 499). When addressing such status, the sentencing court should set forth factors considered in its determination …, particularly when denying youthful offender status … .

The People * * * assert that, since the sentence was consistent with prevailing precedent when imposed …., the holding in Rudolph should not be applied retroactively. However, notwithstanding the lengthy delay in perfecting this appeal, this case is before us on direct appeal — not a collateral attack — and the law as it now exists controls… . People v Calkins, 2014 NY Slip Op 04977, 3rd Dept 7-3-14

 

Denial of For Cause Challenge to Juror Required Reversal

The Third Department determined the trial court erred in denying defendant’s “for cause” challenge to a juror:

“Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . Here, during jury selection, juror No. 153 stated that he was “very uncomfortable” about the alleged use of a firearm during the commission of the charged crimes. When asked by defense counsel if his stated discomfort was something that would affect his ability to keep an open mind, juror No. 153 responded, “It might. I can’t say for sure what it is, but it’s a concern to me.”

After questioning of this panel had concluded, and out of the presence of the prospective jurors, defense counsel challenged juror No. 153 for cause. County Court, stating that defense counsel failed to ask any follow-up questions of juror No. 153 at the time the juror made the subject statements in order to make out an appropriate foundation for cause, denied the challenge. Having heard the statements by juror No. 153, County Court should have either granted the challenge for cause or conducted a further inquiry of that juror and obtained express, unequivocal assurances on the record of his impartiality … . People v Young, 2014 NY Slip Op 04975, 3rd Dept 7-3-14

 

,

Hearsay Evidence of Another’s Admission to the Crime Warranted a Hearing Pursuant to Defendant’s Motion to Set Aside the Conviction

The Third Department determined newly discovered evidence, including hearsay evidence of the admission of another (Melton) to the commission of the crime, warranted a hearing pursuant to the defendant’s motion to set aside his conviction:

“[A] defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged” … . “Depriving a defendant of the opportunity to offer into evidence another person’s admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . The People’s claims regarding Melton’s unwillingness to testify were themselves hearsay, and simply created issues of fact as to whether he was available and, if not, whether his posttrial statements were admissible as declarations against his penal interest … . A statement is admissible under this hearsay exception if (1) the declarant is unavailable because of death, absence or a refusal to testify on constitutional grounds, (2) the declarant knew when making the declaration that it was contrary to his or her penal interest, (3) he or she had competent knowledge of the facts, and (4) other independent evidence supports the reliability and trustworthiness of the declaration … . Where, as here, the statement at issue tends to exculpate a criminal defendant, a more lenient standard of reliability is applied than to inculpatory statements; an exculpatory declaration is admissible if competent independent evidence “establishes a reasonable possibility that the statement might be true” .. . .  People v Sheppard, 2014 NY Slip Op 04982, 3rd Dept 7-3-14

 

, ,

Sex Offender May Not Avoid Civil Commitment Proceeding by Renouncing Citizenship and Leaving the Country

The Third Department determined the respondent in a Mental Hygiene Law 10.06 proceeding (called a SOMTA proceeding) to determine whether he, as a sex offender, should be committed to a secure mental health treatment facility, could not defeat the proceeding by renouncing his citizenship and leaving the country:

It is well established that “Congress has broad authority to set the conditions and procedures that an individual must satisfy in order to renounce his [or her] citizenship” … . In accord with its authority, Congress enacted 8 USC § 1481, which, in relevant part, provides that “[a] person who is a national of the United States whether by birth or naturalization, shall lose his [or her] nationality by voluntarily performing [certain enumerated] acts with the intention of relinquishing United States nationality” … . A citizen seeking to renounce his or her nationality must make an application therefor and, generally, must be outside the United States to do so … . To this end, respondent argues that the SOMTA petition must be dismissed so that he may be released from DOCCS’s custody in order to leave the United States and return to Israel, where he will effectuate his expatriation… .

We flatly reject this argument, which presupposes, among other things, that respondent would actually exit this country if he were released from custod. Even if he did leave, the state is not required to bear the risk that petitioner — an experienced international fugitive — would not return to New York thereafter. In any event, at this juncture, respondent remains a United States citizen confined in New York who is a sex offender alleged to have a mental abnormality and in need of civil management, and petitioner continues to have a legitimate interest in protecting society from the risks he poses… . Matter of State of New York v Horowitz, 2014 NY Slip Op 05001, 3rd Dept 7-3-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy