The Third Department determined the failure of County Court to set forth the manner and time of the payment of restitution required that the restitution order be vacated and the matter remitted to correct the omissions. Peoplev Durham, 105027, 3rd Dept 10-17-13
The Third Department determined defendant’s guilty plea was invalid (based on the allocution) and vacated it in the absence of a motion to withdraw the plea or vacate the judgment of conviction:
As the record before us does not indicate that defendant ever actually entered a guilty plea pursuant to the plea agreement, we reverse. While defense counsel indicated that it was defendant’s “intent[]” to do so, after County Court had recited the terms of the plea agreement, which defendant indicated he had “heard,” defendant never actually admitted his guilt in any manner and did not enter a valid plea. The plea allocution simply does not reflect that defendant “understood the nature of the charge against him . . . and voluntarily entered into such plea” .. . Further, while defendant “was not required to recite the elements of his crime or engage in a factual exposition,” County Court did not pose any questions, read the count of the indictment, or explain the crime (or its elements) to which he was entering a plea, so as to “establish the elements of the crime” … ; nor did defendant provide “unequivocal . . . responses” or “indicate[] that he was entering the plea because he was, in fact, guilty” … .
While defendant did not move to withdraw the plea (and we have no indication on this record that defendant moved to vacate the judgment of conviction) so as to preserve his challenge to the factual sufficiency of the plea allocution … , we find it appropriate to exercise our interest of justice jurisdiction and reverse given, in part, that defense counsel may have been dissuaded from making such a motion by County Court’s advisement to defendant during the plea colloquy that if he violated the conditions of his release he “will not be permitted to withdraw [his] plea of guilty.” Thus, we find that the plea was invalid. People v Beniquez, 104692, 3rd Dept 10-17-13
In reversing County Court and dismissing the indictment on speedy trial grounds, the Third Department noted there was no evidence the defense agreed to an adjournment during the period another criminal proceeding against the defendant was ongoing:
There is no support in the record for the People’s unsubstantiated claim that “it was agreed and understood” that defendant consented to an adjournment or waiver from March 27, 2009 until July 17, 2009. “Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay” … . “While a defendant may waive rights under CPL 30.30, the record here contains no evidence of any waiver, written or oral,” and the Court of Appeals has made clear that “prosecutors would be well advised to obtain unambiguous written waivers in situations like these” … . As the People failed to meet their burden of proving that the disputed 112-day period was not chargeable to them …, the People did not establish that they were ready for trial within the statutory six-month period (see CPL 30.30 [1] [a]). Therefore, defendant was entitled to dismissal of the indictment pursuant to CPL 30.30. People v Smith, 104091, 3rd Dept 10-17-13
The Third Department determined the People failed to prove that the cocaine seized from the defendant at the police station after his arrest was not the product of the earlier illegal arrest of the defendant (fruit of the poisonous tree). At the Dunaway hearing, the People presented no witnesses concerning the seizure at the police station. County Court’s finding that the “attenuation” doctrine supported the legitimacy of the seizure at the station was therefore not supported by the record:
Under well-established exclusionary rule principles, where police have engaged in unlawful activity – here, by arresting defendant without probable cause – evidence which is a result of the “exploitation of that illegality” is subject to suppression as the “fruit of the poisonous tree” unless one of the recognized exceptions to the exclusionary rule is applicable … . The exception at issue here, as specifically decided by County Court thereby preserving the issue for appeal (see CPL 470.05 [2]…), is attenuation, that is, whether the production of the cocaine evidence during defendant’s illegal detention resulted from the exploitation of that illegality, directly or derivatively … . The focus of the attenuation exception is “on the presence or absence of ‘free will’ or voluntariness regarding a defendant’s . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint” … . “That determination requires consideration of the temporal proximity of the arrest and [acquisition of evidence] . . ., the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” … .
Given the complete lack of testimony at the Dunaway hearing regarding the post-illegal-arrest incident at the police station – including any intervening circumstances – in which cocaine evidence was reportedly seized from defendant’s person, we find that the People failed to satisfy their burden of proving the applicability of the attenuation exception. That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means “sufficiently distinguishable from [the illegality] to be purged of illegality” … . Thus, County Court’s finding of attenuation is not supported by the hearing record. People v Small, 103485, 3rd Dept 10-17-13
In a contract action, the Third Department noted that: (1) a limitation of liability clause in a contract can be raised by the defaulting party after a default in the inquest on damages; (2) the court can determine whether the defaulting party stated valid causes of action; and (3) allegations of deceptive practices aimed at the general public state a cause of action under General Business Law 349. In explaining why the fraud cause of action was valid in this contract-based case, the Third Department wrote:
In order to recover on the third cause of action for fraud, the defrauded party must allege a misrepresentation or omission of a material fact known to be false and made with the intent to deceive, as well as justifiable reliance and damages … . While it is the general rule that “[a] separate cause of action seeking damages for fraud cannot stand when the only fraud alleged relates to a breach of contract” …, defendants’ allegations of fraud do not concern any express terms of the contract or third-party defendants’ failure to perform those term …. Rather, defendants allege that third-party defendants fraudulently induced them into entering the contract by falsely representing that they were skilled, competent and experienced in providing construction management services. Those allegations are not redundant of the breach of contract cause of action, which claims that third-party defendants failed to perform the terms of the contract … . Defendants also alleged that they relied on the representations …, and the allegations permit us to infer that the reliance was justified. Nor is there anything in the complaint or contract that would suggest that their reliance was unjustified … . 84 Lumber Co LP v Barringer…, 516235, 3rd Dept 10-17-13
Supreme Court granted summary judgment to plaintiff health insurer on the ground that certain portions of Insurance Law section 4308 constituted an unconstitutional impairment of contract rights. The Third Department determined summary judgment should not have been granted (on grounds unrelated to a determination of constitutionality). In the course of the decision, the court explained the constitutional analytical criteria:
Plaintiff is a not-for-profit health insurer that offers various types of health insurance to its subscribers, including – insofar as is relevant here – community-rated, large-group insurance and health maintenance organization policies. Historically, insurers such as plaintiff were required to obtain prior approval from the Superintendent of Insurance1 before increasing or decreasing premium rates (see Insurance Law former § 4308 [c] [1]…). In 1995, however, the Legislature replaced this system with a “file and use” methodology, whereby insurers could increase or decrease premiums at their discretion, so long as the “anticipated incurred loss ratio” for the affected insurance pool fell within statutory minimum and maximum percentages… . If the actual loss ratio fell below the statutory minimum, the insurer was required to “issue a refund to its subscribers or credit a dividend against future premiums”; if the actual loss ratio exceeded the statutory maximum, the insurer “increase[d] its premium rates accordingly”… .
In response to growing concerns that steady increases in premium rates were making health insurance less affordable, the Legislature amended Insurance Law § 4308 again in 2010 (see L 2010, ch 107, § 2) – reinstating the prior approval requirement and setting the minimum loss ratio for all coverage pools at 82% loss ratio for its large-group coverage pools fell below the 82% requirement. As a result, defendant Superintendent of Financial Services directed that plaintiff issue refunds or credits totaling $3,349,976 to policyholders enrolled in community-rated large-group contracts. * * *
US Constitution, article I, § 10 provides that “[n]o [s]tate shall . . . pass any . . . [l]aw impairing the [o]bligation of [c]ontracts.” The prohibition contained in the Contract Clause, however, is not absolute, as states “retain the power to safeguard the vital interests of [their] people” … . “Thus, the [s]tate may impair [private] contracts by subsequent legislation or regulation so long as it is reasonably necessary to further an important public purpose and the measures taken that impair the contract are reasonable and appropriate to effectuate that purpose” … . Analysis of a claimed Contract Clause violation “require[s] consideration of three factors: (1) whether the contractual impairment is in fact substantial; if so, (2) whether the law serves a significant public purpose, such as remedying a general social or economic problem; and, if such a public purpose is demonstrated, (3) whether the means chosen to accomplish this purpose are reasonable and appropriate”… . Healthnow New York Inc … v NYS Insurance Dept, 516179, 3rd Dept 10-17-13
Petitioner, former Chief Financial Officer of AIG, was the subject of a civil enforcement action against him brought in 2005 by then Attorney General Eliot Spitzer. Supreme Court granted petitioner’s Freedom of Information Law (FOIL) request for access to private emails of Spitzer. The Third Department determined that, given the nature of the documents requested, and Spitzer’s current status as a private person, he was a necessary party to the action:
Since at this juncture the object of this proceeding is Spitzer’s private email account(s), and the outcome of this appeal could be a directive to respondent to gain access to and review those private accounts, Spitzer would certainly be “inequitably affected by a judgment in th[is] [proceeding]” and “ought to be [a] part[y] if complete relief is to be accorded between the persons who are parties to [this proceeding]” (CPLR 1001 [a]). As such, Spitzer is a necessary party herein … . While not raised directly by the parties, “the court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … . “The rule . . . insures fairness to third parties who ought not to be prejudiced or ’embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard'” … .
In this matter, resolution of the disputed FOIL demand directly impacts the personal property of Spitzer, now a private citizen who is not before this Court and whose significant private rights and property cannot be said to be protected by the current respondent, which admittedly does not represent Spitzer’s private interests. However, “[t]his [C]ourt has previously held that a court may not, on its own initiative, add or direct the addition of a party” (…see CPLR 1003). Accordingly, the matter must be remitted to Supreme Court to order Spitzer to be joined if he is subject to the jurisdiction of the court and, if not, to permit Spitzer’s joinder by stipulation, motion or otherwise and, “if joinder cannot be effectuated, the court must then determine whether the [proceeding] should be permitted to proceed in the absence of necessary parties”… . Matter of Smith v NYS Office of the Attorney General, 515758, 3rd Dept 10-17-13
In affirming the denial of summary judgment to the defendant driver who struck plaintiff when the defendant turned toward the shoulder to avoid an on-coming car, the Third Department noted that plaintiff’s Chapter 13 bankruptcy did not preclude the suit and there were questions of fact about the applicability of the emergency doctrine:
Initially, we reject defendants’ assertion that plaintiff lacks the capacity to sue by virtue of his failure to disclose his personal injury claim in his chapter 13 bankruptcy schedule of assets. “While [c]hapter 7 and [c]hapter 11 debtors lose standing to maintain civil suits – which must be brought and/or maintained by their bankruptcy trustees – it is clear that [c]hapter 13 debtors like plaintiff are not subject to this restriction” … . Accordingly, Supreme Court properly concluded that plaintiff’s omission in this regard was not fatal. …
“Under the emergency doctrine, a driver who confronts a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration may be relieved of liability if the actions taken in response are reasonable and prudent in the emergency context” … . The reasonableness of the driver’s conduct, as well as whether he or she could have done something to avoid the accident, typically present questions of fact for a jury to resolve … . Thus, in order to be granted summary judgment in this regard, “a driver must establish as a matter of law that he or she did not contribute to the creation of the emergency situation, and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision” …Defendants failed to meet that burden here. Collins v Suraci, 516138, 3rd Dept 10-17-13
In reversing Supreme Court, the Third Department determined the doctrine of res ipsa loquitur sufficiently raised a question of fact about whether a shard of wood, which was swallowed by plaintiff, was negligently present in food prepared by defendant (Cipriani):
Res ipsa loquitur is neither a theory of liability nor a presumption of liability, but instead is simply a permitted inference – that the trier of fact may accept or reject – reflecting a “common-sense application of the probative value of circumstantial evidence” … . Criteria for res ipsa loquitur to apply are that “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . The parties dispute the exclusive control element and, to establish that element, plaintiffs were “not obligated to eliminate every alternative explanation for the event, but only to demonstrate that the likelihood of causes other than the defendant[s’] negligence is so reduced that the greater probability lies at defendant[s’] door, rendering it more likely than not that the injury was caused by defendant[s’] negligence” … .
Here, the event occurred at a banquet hall operated by Cipriani. Cipriani prepared and provided all of the food. Attendees were not permitted to bring food onto the premises. Individuals undisputedly under Cipriani’s control (pursuant to a contractual arrangement) acted as captains, servers and bartenders. Cipriani thus exclusively prepared, provided and served the food. Although the shard possibly could have been present when the ingredients for food were purchased from suppliers, it was not so small as to have been likely concealed and thus not visible upon careful preparation (cf. Restatement [Second] of Torts § 328D, Comment e, Illustration 2). … There is sufficient proof under these circumstances to find ample control by defendants for purposes of res ipsa loquitur. Brumberg v Cipriani USA Inc, 2013 NY Slip Op 06759, 3rd Dept 10-17-13
The Third Department affirmed Supreme Court and determined that a modified Medicaid reimbursement procedure for the school supportive health services program (SSHSP) did not violate the State Administrative Procedure Act because the new administrative directives (referred to as Q & A’s) were not new rules triggering the requirements of the Act:
The documentation and reimbursement eligibility requirements reflected in the challenged Q & As were not required to be promulgated as rules under the State Administrative Procedure Act. For purposes of rule-making notice and filing requirements (see State Administrative Procedure Act § 202), a rule is defined as “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law, or prescribes . . . the procedure or practice requirements of any agency, including the amendment, suspension or repeal thereof” (State Administrative Procedure Act § 102 [2] [a]). Expressly excluded from the definition are “rules concerning the internal management of the agency which do not directly and significantly affect the rights of or procedures or practices available to the public” (State Administrative Procedure Act § 102 [2] [b] [i]), and “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory” (State Administrative Procedure Act § 102 [2] [b] [iv]). The Court of Appeals has recognized “that there is no clear bright line between a ‘rule’ or ‘regulation’ and an interpretative policy” (Cubas v Martinez, 8 NY3d 611, 621 [2007]). Courts have previously found administrative directives to be interpretive statements when they rely on and constitute reasonable interpretations of existing regulations or statutes, or merely address the type of documentation needed to establish whether a predetermined test of eligibility has been met … . Board of Education of the Kiryas Joel Village Union Free School District, 516336, 3rd Dept 10-17-13
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