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Defense Counsel’s Statement Defendant “Most Likely” Would Not Be Deported Based on a Guilty Plea Did Not Amount to Ineffective Assistance

The Third Department determined that defense counsel’s statement that the defendant “most likely” would not be deported based on his guilty plea to a misdemeanor did not constitute ineffective assistance. Defendant had subsequently been detained by immigration officials for deportation:

…[D]efendant was required to establish both ‘that counsel’s performance was deficient’ and ‘that the deficient performance prejudiced the defense'” … .  Here, the record indeed makes clear that defendant was concerned about the possibility of being deported.  The record does not, however, establish that defendant was given erroneous advice regarding the potential immigration consequences associated with his guilty plea. People v Obeya, 105313, 3rd Dept 10-31-13

 

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Remedies Re: Purchase and Sale of Furniture Controlled by UCC

In affirming the grant of summary judgment on a breach of contract cause of action  regarding the purchase of furniture accepted by the defendant, the Third Department explained the relevant law under the UCC:

Because the transaction predominantly involved the sale of goods, the parties’ rights and remedies are governed by UCC article 2 … .  The parties’ oral contract is enforceable because both parties acknowledge the existence of that contract (see UCC 2-201 [3] [b]).  The UCC provides that acceptance of goods takes place, among other ways, when the buyer fails to reject them after having a reasonable opportunity to inspect them (see UCC 2-606 [1] [b]…).  A buyer must pay for accepted goods at the contract rate (see UCC 2-607 [1]), but may eliminate or diminish the amount claimed by a seller by asserting a valid counterclaim for breach of the sales agreement … .  Where a seller has allegedly breached the contract, a buyer who has accepted the goods “must within a reasonable time after he [or she] discovers or should have discovered any breach notify the seller of breach or be barred from any remedy” (UCC 2-607 [3] [a]…).

Plaintiff met its burden on the summary judgment motion by submitting proof that it delivered and installed the furniture, defendant accepted the furniture by retaining it without attempting to return it, and defendant only paid the $13,250 down payment on the $44,330.21 contract… .  Accent Commercial Furniture Inc v P. Schneider & Associates, PLLC, 515940, 3rd Dept 10-31-13

 

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Punitive Damages Not Available in Contract Action Absent Independent Tort

The Third Department determined plaintiff had not pled a tort cause of action independent of the breach of contract cause of action and therefore was not entitled to punitive damages.  The plaintiff had alleged defendant insurance company engaged in bad faith by failing to promptly investigate his no-fault claim and failing to renew his insurance policy:

Although “damages arising from the breach of a contract will ordinarily be limited to the contract damages necessary to redress the private wrong, . . . punitive damages may be recoverable if necessary to vindicate a public right” …, but only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public … .  Thus, “[w]here a lawsuit has its genesis in the contractual relationship between the parties, the threshold task for a court considering [a] defendant’s motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract” … .  In this regard, a “defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations” … .  Nonetheless, “where a party is merely seeking to enforce its bargain, a tort claim will not lie” … .

Here, plaintiff seeks an award of punitive damages based upon his allegation that defendant engaged in “bad faith tactics” by failing to promptly investigate his no-fault claim and failing to renew his insurance policy.  Such claim does not allege a breach of duty distinct from defendant’s contractual obligations. Further, while plaintiff alleged a violation of Insurance Law § 2601 based upon defendant’s purported failure to timely investigate his no-fault claim, New York does not recognize a private cause of action under that statute… . Dinstber v Allstate Insurance Company, 515653, 3rd Dept 10-31-13

 

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Affirmative Defense of Arbitration Waived by Participation in Judicial Process

The Third Department determined that defendant waived a contractual provision requiring arbitration by participating in the judicial process:

…[W]hile defendant asserted the contractual arbitration provision as an affirmative defense in its answer, it did not move to stay the action and compel arbitration (see CPLR 7503 [a]).  Instead, it aggressively participated in the discovery process and received the benefit of extensive discovery from plaintiff, which would not otherwise have been available in arbitration … . In doing so, defendant’s acceptance of the judicial forum “manifested a preference ‘clearly inconsistent with . . . [a] claim that the parties were obligated to settle their differences by arbitration'” … .  Thus, we agree with Supreme Court’s determination that defendant’s actions resulted in a waiver of its right to compel arbitration … . Masson v Wiggins & Masson LLP…, 515340, 515427, 3rd Dept 10-31-13

 

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Neglect Allegations Not Proven by Hearsay Testimony Based On Statements Made by Mother

The Third Department affirmed the dismissal of a neglect petition after a hearing where the only evidence was the hearsay testimony of the caseworker based on what the caseworker was told by the mother:

“To establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child’s physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care”… . At a fact-finding hearing, only “competent, material and relevant evidence” may be admitted (Family Ct Act § 1046 [b] [iii]…).Here, the only proof offered by petitioner was the testimony of its caseworker, who had no personal knowledge of the events that led to the filing of the petition.  Rather, the caseworker’s testimony concerning the alleged acts constituting neglect consisted entirely of what he was purportedly told by the mother.  Upon our review of the record and notwithstanding the absence of any contrary testimony, we discern no error in Family Court’s determination that the testimony of the caseworker was insufficient to sustain petitioner’s burden of proof… .  Matter of Lydia DD…, 515237, 3rd Dept 10-31-13

 

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Abuse Was Not Demonstrated; Non-Testifying Child’s Out-Court-Statements Not Corroborated by Witnesses Who Testified About What the Child Told Them

The Third Department affirmed Family Court’s determination that the petitioner had not met its burden of proof that respondent had abused a child (Kaelynn).  The child did not testify and petitioner relied entirely on the testimony of four people to whom the child had disclosed abuse, and the observations of the child’s demeanor during the disclosures. No medical proof was submitted.  In finding the out-of-court allegations made by the child had not been corroborated, the court explained:

…[T]he record contains insufficient evidence to corroborate Kaelynn’s allegations.  Significantly here, a child’s uncorroborated unsworn allegations of abuse alone are insufficient to sustain a finding of abuse (see Family Ct Act § 1046 [a] [vi]) and, although “a child’s out-of-court statement ‘may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings'” …, there is “a threshold of reliability that the evidence must meet” … .  “Whether this corroboration requirement has been satisfied is a ‘fine judgment’ entrusted in the first instance to Family Court, which has the advantage of having heard and seen the various witnesses” … .

Under established law, Kaelynn’s repetition of the allegations of abuse to the testifying witnesses, however consistent and believable, is not sufficient to corroborate these prior out-of-court statements … .  Petitioner presented no expert testimony to “objectively validate [Kaelynn’s] account” or to “relate[] any of her past or present conduct or characteristics to the alleged sexual abuse” … .  While a police investigator who interviewed Kaelynn testified that he conducted a “truth versus lie” inquiry of her and concluded that she understood the consequences of lying, he did not explain his methodology for reaching this conclusion nor did he relate whether her account fit any profile for truthful testimony from abused children … .  Moreover, there was no physical evidence of sexual abuse …, and Kaelynn – in light of her young age — did not give sworn testimony nor was she questioned in camera … . Matter of Dezarea T …, 514693, 3rd Dept 10-31-13

 

Question of Fact Re: Implied Easement for Pipeline to Pond

The Third Department determined there was a question of fact whether an implied easement existed for a pipeline linking defendant’s property with a pond.  The court agreed with Supreme Court that an express easement had been extinguished when the relevant parcels were owned by the same party and was not subsequently recreated de novo.  The court explained the criteria for an implied easement:

“[A]n easement by implication requires ‘(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land'” … .  Stated another way, “[a]n implied easement will arise ‘upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate'” … . Here, there is no genuine dispute that there was unity in ownership and a subsequent separation of title of the subject parcels.  Similarly, defendants made a prima facie showing that the use of the pipeline across plaintiff’s property was continued and obvious for decades.  Freeman v Walther, 516293, 3rd Dept 10-24-13

 

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Inmate’s FOIL Request for Prison Directive Should Have Been Granted

The Third Department determined the inmate’s Freedom of Information Law (FOIL) request for a Department of Corrections directive should have been granted:

…”[T]here is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt under Public Officers Law § 87 (2) by articulating a specific and particularized justification” … .  Although the basis of the denial of petitioner’s request was that the disclosure may endanger the life or safety of a person (see Public Officers Law § 87 [2] [f]), we fail to see how the disclosure of DOCCS Directive No. 4004, which pertains to the specifications for creating unusual incident reports, poses a danger to lives or to anyone’s safety … . Accordingly, the directive must be disclosed. Matter of Flores v Fischer, 516131, 3rd Dept 10-24-13

 

Effects of Refusal to Allow Inmate to Call Witness Explained

The Third Department, in determining that a new hearing, not expungement, was the appropriate remedy, explained the ramifications of a hearing officer’s refusal of an inmate’s request to call witnesses:

“[W]hile ‘[a] hearing officer’s actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness’s testimony, constitutes a clear constitutional violation [requiring expungement,] [m]ost other situations constitute regulatory violations [requiring a new hearing]'” … .  Here, … the denial of the witnesses constituted a regulatory violation, and the proper remedy is to remit the matter for a new hearing… . Matter of Griffin, 515749, 3rd Dept 10-24-13

 

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Grant of Writ of Prohibition Reversed—Criteria for Writ Explained

Supreme Court granted a writ of prohibition finding the state police did not have the legal authority to seize cigarettes purchased by a Nebraska Indian tribe from a manufacturer located on the St. Regis Mohawk Indian Reservation in St. Lawrence County.  The cigarettes did not have state tax stamps.  The Third Department reversed describing the relevant analysis as follows:

Pursuant to well-established law, a CPLR article 78 proceeding for a writ of prohibition is an extraordinary remedy … that “lies only where there is a clear legal right to such relief, and only when [the body or officer involved] acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (…see also CPLR 7803 [2]).  Even where such a proceeding is permissible, the court has the discretion to deny the issuance of a writ of prohibition after considering such factors as “‘the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'”… .

…[P]etitioner failed to prove the absence of other avenues of relief that would adequately address the challenged seizure of the cigarettes… . * * *

…[P]etitioner failed to establish a clear entitlement to a writ of prohibition.  As relevant here, Tax Law § 471 (1) imposes “a tax on all cigarettes possessed in the state by any person for sale,” except under circumstances where “this state is without power to impose such tax” (Tax Law § 471 [1]; see 20 NYCRR 74.1 [a] [1]).4  All cigarettes within the state are presumed to be subject to tax unless “the contrary is established,” with the burden of proof of nontaxibility falling upon the person in possession of the cigarettes (Tax Law § 471 [1]).  In claiming that the sale here was not a taxable event, petitioner relies upon regulations which provide that no tax may be imposed on cigarettes sold to an out-of-state purchaser (see 20 NYCRR 74.1 [c] [4]; 76.1 [a] [1]). However, the same regulations that establish such exemption also require that all out-of-state sales be made by a duly licensed cigarette agent and that a certificate be obtained from the out-of-state purchaser showing that the cigarettes “will be immediately removed from the State to an identified location for such purposes and that such cigarettes shall not be returned to the State for sale or use herein” (20 NYCRR 76.3 [b] [emphasis added]).

…[P]etitioner has produced no evidence that the cigarettes would not be reintroduced into the state.   In fact, respondents submitted evidence in the form of, among other things, petitioner’s corporate shipment records and a statement by the driver of the truck, which suggest that petitioner regularly transports back into the state cigarettes purchased from the same manufacturer involved here.  HCI Distribution, Inc v NYS Police…, 516040, 3rd Dept 10-24-13

 

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