JUST RELEASED

October Page II

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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COURT OF APPEALS

ARBITRATION, CONTRACT LAW.

WHETHER THE MATTER IS ARBITRABLE MUST BE DETERMINED BY THE ARBITRATOR (CT APP).

The Court of Appeals, in a brief memorandum, reversed the First Department and held that, under the controlling agreements, whether the matter is arbitrable must be determined by the arbitrator. The First Department decision, with a two-justice dissent, is at Garthon Bus Inc v Stein, 2016 NY Alip Op 03102, First Dept 4-26-16:

Under the circumstances of this case, including the terms of the parties' final agreements, which incorporated the rules of the London Court of International Arbitration, the issue of whether the dispute is arbitrable should be resolved by the arbitrator ... . Garthon Bus. Inc. v Stein, 2017 NY Slip Op 07160, Ct App 10-12-17

CIVIL PROCEDURE (INQUEST, DAMAGES, PARTY PROPERLY PRECLUDED FROM PARTICIPATION IN DAMAGES INQUEST BASED UPON THE PARTY'S REFUSAL TO PROVIDE COURT-ORDERED DISCLOSURE OF TAX RETURNS (CT APP))/DAMAGES (INQUEST, PARTY PROPERLY PRECLUDED FROM PARTICIPATION IN DAMAGES INQUEST BASED UPON THE PARTY'S REFUSAL TO PROVIDE COURT-ORDERED DISCLOSURE OF TAX RETURNS (CT APP))/INQUEST (DAMAGES, PARTY PROPERLY PRECLUDED FROM PARTICIPATION IN DAMAGES INQUEST BASED UPON THE PARTY'S REFUSAL TO PROVIDE COURT-ORDERED DISCLOSURE OF TAX RETURNS (CT APP))/DISCLOSURE (INQUEST, DAMAGES, PARTY PROPERLY PRECLUDED FROM PARTICIPATION IN DAMAGES INQUEST BASED UPON THE PARTY'S REFUSAL TO PROVIDE COURT-ORDERED DISCLOSURE OF TAX RETURNS (CT APP))/TAX RETURNS (DISCLOSURE, PARTY PROPERLY PRECLUDED FROM PARTICIPATION IN DAMAGES INQUEST BASED UPON THE PARTY'S REFUSAL TO PROVIDE COURT-ORDERED DISCLOSURE OF TAX RETURNS (CT APP))

CIVIL PROCEDURE.

PARTY PROPERLY PRECLUDED FROM PARTICIPATION IN DAMAGES INQUEST BASED UPON THE PARTY'S REFUSAL TO PROVIDE COURT-ORDERED DISCLOSURE OF TAX RETURNS (CT APP).

The Court of Appeals, in a brief memorandum, determined Supreme Court did not abuse its discretion when it precluded a party's participation in an inquest to determine damages based upon the party's failure to comply with court orders directing disclosure of tax returns. The First Department's decision is at Herman v Herman, 2016 NY Slip Op 07148, First Dept 11-1-16 which provides a citation for the Supreme Court decision:

In review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question answered in the affirmative. Supreme Court did not abuse its discretion in precluding defendant Julian Maurice Herman from participating in the inquest to assess damages against him. Moreover, the denial of that defendant's cross motion was proper. Herman v Herman, 2017 NY Slip Op 07161, CtApp 10-12-17

CRIMINAL LAW (FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (CT APP))/JURORS (CRIMINAL LAW, FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (CT APP))/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (CT APP)) 

CRIMINAL LAW.

FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a brief memorandum, reversed defendant's conviction and ordered a new trial, finding that a for cause challenge to a juror should have been granted. The Second Department decision is at People v Wright, 2015 NY Slip Op 09447, Second Dept 12-23-15:

Pursuant to CPL 270.20 (1) (b), a prospective juror may be challenged for cause if the juror evinces "a state of mind that is likely to preclude [the juror] from rendering an impartial verdict based upon the evidence adduced at the trial" ... . Here, the prospective juror's statements raised serious doubt regarding her ability to be unbiased, and the trial court did not inquire further to obtain unequivocal assurance that she could be fair and impartial ... . Under the circumstances of this case, where it was error to deny defendant's challenge for cause and he eventually exhausted his peremptory challenges, defendant's conviction should be reversed and a new trial ordered ... . People v Wright, 2017 NY Slip Op 07159, CtApp 10-12-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, SUMMARY JUDGMENT REVERSED (CT APP))/MEDICAL MALPRACTICE (SUMMARY JUDGMENT REVERSED (CT APP))

 

NEGLIGENCE, MEDICAL MALPRACTICE.

SUMMARY JUDGMENT REVERSED (CT APP).

The Court of Appeals, in a brief memorandum, determined a summary judgment motion in this medical malpractice action should have been denied. The Second Department decision is at Burns v Goyal, 2016 NY Slip Op 08834, Second Dept 12-28-16:

On review of submissions pursuant to section 500.11 of the Rules, order modified, with costs to plaintiff against defendants Rakesh B. Patel and Suffolk Heart Group, LLP and to defendants Michael Torelli and South Shore Family Practice Associates, P.C. against plaintiff, by denying the motion of defendants Rakesh B. Patel and Suffolk Heart Group, LLP for summary judgment and, as so modified, affirmed. On this record, triable questions of fact preclude summary judgment in favor of these defendants. Burns v Goyal, 2017 NY Slip Op 07162, Ct App 10-12-17

APPELLATE DIVISION

ADMINISTRATIVE LAW (STATE LIQUOR AUTHORITY SHOULD NOT HAVE DENIED APPLICATION FOR A LIQUOR LICENSE BASED UPON THE HISTORY OF PRIOR TAVERNS AT THE SAME LOCATION WITH WHICH THE CURRENT APPLICANT HAD NO CONNECTION (FIRST DEPT))/LIQUOR LICENSES (STATE LIQUOR AUTHORITY SHOULD NOT HAVE DENIED APPLICATION FOR A LIQUOR LICENSE BASED UPON THE HISTORY OF PRIOR TAVERNS AT THE SAME LOCATION WITH WHICH THE CURRENT APPLICANT HAD NO CONNECTION (FIRST DEPT))/STATE LIQUOR AUTHORITY (ADMINISTRATIVE LAW, (STATE LIQUOR AUTHORITY SHOULD NOT HAVE DENIED APPLICATION FOR A LIQUOR LICENSE BASED UPON THE HISTORY OF PRIOR TAVERNS AT THE SAME LOCATION WITH WHICH THE CURRENT APPLICANT HAD NO CONNECTION (FIRST DEPT))

ADMINISTRATIVE LAW.

STATE LIQUOR AUTHORITY SHOULD NOT HAVE DENIED APPLICATION FOR A LIQUOR LICENSE BASED UPON THE HISTORY OF PRIOR TAVERNS AT THE SAME LOCATION WITH WHICH THE CURRENT APPLICANT HAD NO CONNECTION (FIRST DEPT).

The First Department, over a substantive dissent, determined the New York State Liquor Authority (SLA) should not have denied the application for a liquor license based upon the prior history of businesses at the same location. The current applicant had no connection with the prior businesses:

The SLA is given wide latitude in the exercise of its powers ... . In reviewing a determination made by the SLA, the test to be applied by the court is whether its determination has a rational basis in the record ... .

The dissent correctly notes that the prior adverse license history of the subject premises, and the sensitive area in which it is located, may be proper factors to be considered in the licensing process. However, in doing so, the dissent ignores long-standing precedent from several Judicial Departments, including our own, that such history is not relevant where, as here, the principal of the applicant "ha[s] no ownership interest in the previous licensee and there is no reasonable factual basis to support a finding that he exercised managerial responsibilities with respect to that prior operation" ... .

 

The SLA maintains that the applicant has the identical business plan for a nightclub as the previous two licensees whose licenses were revoked. Thus, the SLA contends that the fear of "history . . . repeat[ing] itself," especially in light of the proposed manager's "questionable" experience, has a rational basis and its denial should be upheld. However, its denial appears to be "based upon conclusory reasons unsupported by factual considerations of reasonable persuasiveness and should therefore . . . be set aside"... . Moreover, the SLA may not deny a proper license application based on the supposition that principals of the licensee would not exercise the "proper degree of personal supervision'" over the licensed premises to insure the premises would be operated in an orderly and lawful manner, as such denial would be based on speculative inferences ... . Matter of Galaxy Bar & Grill Corp. v New York State Liq. Auth., 2017 NY Slip Op 07168, First Dept 10-12-17

 

CRIMINAL LAW (TRIAL JUDGE FAILED TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, QUITTAL ON THE REMAINING CHARGES, NEW TRIAL ORDERED (FIRST DEPT))/JUSTIFICATION (CRIMINAL LAW, TRIAL JUDGE FAILED TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES, NEW TRIAL ORDERED (FIRST DEPT))

 

CRIMINAL LAW.

TRIAL JUDGE FAILED TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, upon remitittur from the Court of Appeals, reversed defendant's conviction and ordered a new trial. Initially the First Department reversed finding that the trial court should not have given the initial aggressor instruction in this homicide trial. The Court of Appeals reversed, finding the instruction was properly given. Upon remittitur, the First Department again reversed the conviction finding that the trial court did not explain to the jury that an acquittal on the top count based on the justification defense required an acquittal on all the remaining charges:

Upon remittitur, we find that defendant is entitled to a new trial. As in People v Kareem, (148 AD3d 550 [1st Dept 2017], lv dismissed 29 NY3d 1033 [2017]) and People v Velez (131 AD3d 129 [1st Dept 2015]), "the court's jury charge failed to convey that an acquittal on the top count based on a finding of justification . . . would preclude consideration of the remaining charges"  ... . People v Valentin, 2017 NY Slip Op 07166, First Dept 10-12-17

CRIMINAL LAW (COURT FAILED TO CONDUCT A SUFFICIENT INQUIRY INTO THE REASON FOR DEFENDANT'S ABSENCE FROM TRIAL BEFORE HEARING TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT))/IN ABSENTIA (CRIMINAL LAW, COURT FAILED TO CONDUCT A SUFFICIENT INQUIRY INTO THE REASON FOR DEFENDANT'S ABSENCE FROM TRIAL BEFORE HEARING TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT))/RIGHT TO BE PRESENT (CRIMINAL LAW, RIGHT TO BE PRESENT, COURT FAILED TO CONDUCT A SUFFICIENT INQUIRY INTO THE REASON FOR DEFENDANT'S ABSENCE FROM TRIAL BEFORE HEARING TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT))

CRIMINAL LAW.

COURT FAILED TO CONDUCT A SUFFICIENT INQUIRY INTO THE REASON FOR DEFENDANT'S ABSENCE FROM TRIAL BEFORE HEARING TESTIMONY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department determined defendant was entitled to a new trial because Supreme Court did not sufficiently inquire into the reason defendant did not come to court on the third day of the trial. The court heard testimony from two witnesses in the defendant's absence. There was conflicting information about whether the defendant had refused to come to court or whether he was never picked up by jail personnel:

"A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions" ... . A defendant "may forfeit that right by deliberately absenting himself from the proceedings"... .However, "before proceeding in the defendant's absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant's absence is deliberate and to recite on the record the reasons for its finding," and "[t]he failure to conduct such an inquiry constitutes reversible error" ... . Furthermore, "[w]hile the right to be present may, under some circumstances, be waived by a defendant's conduct, trial in absentia is not thereby automatically authorized'" ... . "Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear" ... .

 

Here, the Supreme Court failed to conduct a sufficient inquiry as to the circumstances surrounding the defendant's absence. Therefore, the record is insufficient to establish that the defendant deliberately absented himself from the proceedings and thereby forfeited his right to be present ... . Furthermore, the record does not reflect that the court considered any of the appropriate factors ... before deciding to proceed with the trial in the defendant's absence ... . People v Johnson, 2017 NY Slip Op 07143, Second Dept 10-11-17

CRIMINAL LAW (JURORS, PROSECUTOR'S FAILURE TO ARGUE DEFENSE COUNSEL'S REASONS FOR PEREMPTORY CHALLENGES WERE PRETEXTUAL AFTER MAKING A REVERSE BATSON OBJECTION REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/JURORS (CRIMINAL LAW, PEREMPTORY CHALLENGES, PROSECUTOR'S FAILURE TO ARGUE DEFENSE COUNSEL'S REASONS FOR PEREMPTORY CHALLENGES WERE PRETEXTUAL AFTER MAKING A REVERSE BATSON OBJECTION REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/BATSON (CRIMINAL LAW, PEREMPTORY CHALLENGES, PROSECUTOR'S FAILURE TO ARGUE DEFENSE COUNSEL'S REASONS FOR PEREMPTORY CHALLENGES WERE PRETEXTUAL AFTER MAKING A REVERSE BATSON OBJECTION REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/REVERSE BATSON (CRIMINAL LAW, PEREMPTORY CHALLENGES, PROSECUTOR'S FAILURE TO ARGUE DEFENSE COUNSEL'S REASONS FOR PEREMPTORY CHALLENGES WERE PRETEXTUAL AFTER MAKING A REVERSE BATSON OBJECTION REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/PEREMPTORY CHALLENGES (JURORS, BATSON, PROSECUTOR'S FAILURE TO ARGUE DEFENSE COUNSEL'S REASONS FOR PEREMPTORY CHALLENGES WERE PRETEXTUAL AFTER MAKING A REVERSE BATSON OBJECTION REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))

CRIMINAL LAW.

 

PROSECUTOR'S FAILURE TO ARGUE DEFENSE COUNSEL'S REASONS FOR PEREMPTORY CHALLENGES WERE PRETEXTUAL AFTER MAKING A REVERSE BATSON OBJECTION REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department determined the unjustified denial of defense counsel's peremptory challenges to two white jurors required reversal and a new trial. The prosecutor made a reverse Batson objection to the challenges. The defense offered a non-discriminatory reason. But the prosecutor did not then argue the proffered reason was a pretense:

Here, the Supreme Court erred in disallowing the defendant's peremptory challenges to both of the subject prospective jurors. The defendant satisfied his burden of "articulat[ing] a non-discriminatory reason for striking the [prospective] juror[s]" ... , namely, that they had previously served on a criminal jury that reached a verdict ... . The People failed to satisfy their burden of demonstrating that the defendant's facially race-neutral explanation was a pretext for racial discrimination. Inasmuch as "the unjustified denial of a peremptory challenge violates CPL 270.25(2) and requires reversal without regard to harmless error" ... , the judgment must be reversed and the matter remitted to the Supreme Court, Kings County, for a new trial. People v Owoaje, 2017 NY Slip Op 07147, Second Dept 10-11-17

 

CRIMINAL LAW (DEPRAVED INDIFFERENCE MURDER, RARE CASE WHERE DEFENDANT WAS PROPERLY CONVICTED OF DEPRAVED INDIFFERENCE MURDER WHERE ONLY ONE VICTIM WAS ENDANGERED (SECOND DEPT))/DEPRAVED INDIFFERENCE MURDER (RARE CASE WHERE DEFENDANT WAS PROPERLY CONVICTED OF DEPRAVED INDIFFERENCE MURDER WHERE ONLY ONE VICTIM WAS ENDANGERED (SECOND DEPT))

CRIMINAL LAW.

RARE CASE WHERE DEFENDANT WAS PROPERLY CONVICTED OF DEPRAVED INDIFFERENCE MURDER WHEN ONLY ONE VICTIM WAS ENDANGERED (SECOND DEPT).

The Second Department determined the evidence was sufficient to support defendant's conviction for depraved indifference murder. Defendant's child was the victim and the only person endangered by the defendant's conduct. There was evidence defendant deliberately made the child sick over a period of years and ultimately caused the child's death by forcing salt into the child through the child's feeding tube:

"A defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances," including when a defendant "engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" ... . Here, the evidence demonstrated that the defendant subjected the child to such a "brutal, prolonged and ultimately fatal course of conduct"... . In particular, the evidence showed that the defendant's course of conduct against the child in January 2014 included repeatedly sickening him and subjecting him to pain, to the point where he became unable to breathe on his own and, eventually, became brain dead ... . The People established that the defendant introduced salt into the child's G-tube on more than one occasion, despite being aware of its effect on the child's condition, and never informed the doctors of the cause of his symptoms as they struggled to treat him ... . This and other evidence of the defendant's conduct, including the manner in which she presented herself and the situation to others, demonstrated her fixation on garnering attention and sympathy for herself, and her utter indifference to the life of the child. Thus, although depraved indifference to the life of another is "rare" and "surely even rarer when the other person is one's own child" ... , under the unique circumstances of this case, the mens rea of depraved indifference to human life was proven beyond a reasonable doubt ... . People v Spears, 2017 NY Slip Op 07148, Second Dept 10-11-17

CRIMINAL LAW (AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED (FIRST DEPT))/ANIMAL LAW (CRIMINAL LAW, AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED (FIRST DEPT))/CRUELTY TO ANIMALS (CRIMINAL LAW, AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED (FIRST DEPT))

 

CRIMINAL LAW, ANIMAL LAW.

AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED (FIRST DEPT).

The First Department determined defendant's conviction of aggravated cruelty to animals should be affirmed. Defendant crushed the victim's pet parakeet. The fact that the parakeet may have died quickly was not dispositive:

The egregious manner in which defendant killed his former domestic partner's pet parakeet, along with the surrounding circumstances, established that he committed the crime of aggravated cruelty to animals, and specifically, that he intended to cause the bird extreme physical pain (Agriculture and Markets Law § 353-a[1][i]). Contrary to defendant's contentions, the evidence does not suggest that the brutal killing of the bird at issue caused a death that was so instantaneous that it would not be extremely painful. Defendant argues that this was an "ordinary killing" of an animal that should be punished as a misdemeanor offense of overdriving, torturing, and injuring animals (Agriculture and Markets Law § 353), the crime of which defendant was convicted for killing the victim's other pet parakeet. However, defendant's conduct toward the bird at issue was extremely heinous. The court could draw a reasonable inference of extreme physical pain from the fact that the bird had been crushed flat between the bars of its cage. The time it takes to kill an animal is not dispositive under the statute ... . People v Jones, 2017 NY Slip Op 07171, First Dept 10-12-17

CRIMINAL LAW (DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING DETECTIVE ABOUT A CIVIL SUIT AGAINST HIM, REVERSAL OF POSSESSION CONVICTION DID NOT REQUIRE REVERSAL OF SALE CONVICTION, CROSS-EXAMINATION OF DEFENDANT ABOUT A CONVICTION WHICH WAS SUBSEQUENTLY REVERSED DID NOT AFFECT THE CONVICTION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING DETECTIVE ABOUT A CIVIL SUIT AGAINST HIM, REVERSAL OF POSSESSION CONVICTION DID NOT REQUIRE REVERSAL OF SALE CONVICTION, CROSS-EXAMINATION OF DEFENDANT ABOUT A CONVICTION WHICH WAS SUBSEQUENTLY REVERSED DID NOT AFFECT THE CONVICTION (FIRST DEPT))/IMPEACHMENT (EVIDENCE, CRIMINAL LAW, DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING DETECTIVE ABOUT A CIVIL SUIT AGAINST HIM, REVERSAL OF POSSESSION CONVICTION DID NOT REQUIRE REVERSAL OF SALE CONVICTION, CROSS-EXAMINATION OF DEFENDANT ABOUT A CONVICTION WHICH WAS SUBSEQUENTLY REVERSED DID NOT AFFECT THE CONVICTION (FIRST DEPT))/POLICE OFFICERS (CROSS-EXAMINATION, DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING DETECTIVE ABOUT A CIVIL SUIT AGAINST HIM, REVERSAL OF POSSESSION CONVICTION DID NOT REQUIRE REVERSAL OF SALE CONVICTION, CROSS-EXAMINATION OF DEFENDANT ABOUT A CONVICTION WHICH WAS SUBSEQUENTLY REVERSED DID NOT AFFECT THE CONVICTION (FIRST DEPT))

 

CRIMINAL LAW, EVIDENCE.

DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING DETECTIVE ABOUT A CIVIL SUIT AGAINST HIM, REVERSAL OF POSSESSION CONVICTION DID NOT REQUIRE REVERSAL OF SALE CONVICTION, CROSS-EXAMINATION OF DEFENDANT ABOUT A CONVICTION WHICH WAS SUBSEQUENTLY REVERSED DID NOT AFFECT THE CONVICTION (FIRST DEPT).

The First Department determined defendant was entitled to a new trial on the possession of a controlled substance charge because defense counsel was precluded from cross-examining the arresting detective about a federal civil suit against him. The Second Department found, however, that the conviction for sale of a controlled substance could not have been affected by the error. In addition, the Second Department held that cross-examination of the defendant about a conviction which was subsequently reversed on appeal could not have affected the verdict:

The court erred in precluding defense counsel from questioning a detective about the factual allegations in a pending federal civil lawsuit, in which the detective was a named defendant. Specifically, counsel sought to ask the arresting detective "whether he in fact found the drugs on [the plaintiff in that case]; isn't it true that [the plaintiff] did not in fact have any drugs, nonetheless you still in fact arrested him." These allegations were relevant to the detective's credibility, and counsel laid the correct foundation for this form of impeachment ... .

 

This error was not harmless with respect to the possession conviction, because this detective was the sole witness to testify to the circumstances of that charge, in which 17 bags of cocaine were allegedly found on defendant's person during a strip search. However, the error was harmless with respect to the sale conviction ... . People v Robinson, 2017 NY Slip Op 07175, First Dept 10-12-17

 

 

EMPLOYMENT LAW (NYC HUMAN RIGHTS LAW, MOTION TO DISMISS PLAINTIFF'S GENDER DISCRIMINATION SUIT PROPERLY DENIED, EVEN IF DEFENDANT WAS NOT PLANTIFF'S EMPLOYER OR A JOINT EMPLOYER, IT COULD BE LIABLE FOR AIDING AND ABETTING DISCRIMINATION (FIRST DEPT))/HUMAN RIGHTS LAW (NYC) (MOTION TO DISMISS PLAINTIFF'S GENDER DISCRIMINATION SUIT PROPERLY DENIED, EVEN IF DEFENDANT WAS NOT PLANTIFF'S EMPLOYER OR A JOINT EMPLOYER, IT COULD BE LIABLE FOR AIDING AND ABETTING DISCRIMINATION (FIRST DEPT))/DISCRIMINATION (EMPLOYMENT, NYC HUMAN RIGHTS LAW, NYC HUMAN RIGHTS LAW, MOTION TO DISMISS PLAINTIFF'S GENDER DISCRIMINATION SUIT PROPERLY DENIED, EVEN IF DEFENDANT WAS NOT PLANTIFF'S EMPLOYER OR A JOINT EMPLOYER, IT COULD BE LIABLE FOR AIDING AND ABETTING DISCRIMINATION (FIRST DEPT))/AIDING AN ABETTING DISCRIMINATION (NYC HUMAN RIGHTS LAW, MOTION TO DISMISS PLAINTIFF'S GENDER DISCRIMINATION SUIT PROPERLY DENIED, EVEN IF DEFENDANT WAS NOT PLANTIFF'S EMPLOYER OR A JOINT EMPLOYER, IT COULD BE LIABLE FOR AIDING AND ABETTING DISCRIMINATION (FIRST DEPT))/H

 

EMPLOYMENT LAW, HUMAN RIGHTS LAW (NYC).

 

MOTION TO DISMISS PLAINTIFF'S GENDER DISCRIMINATION SUIT PROPERLY DENIED, EVEN IF DEFENDANT WAS NOT PLAINTIFF'S EMPLOYER OR A JOINT EMPLOYER, IT COULD BE LIABLE FOR AIDING AND ABETTING DISCRIMINATION (FIRST DEPT).

The First Department determined the motion to dismiss this gender discrimination suit was properly denied. Plaintiff, a woman, was employed as a construction crane operator. The court found that the defendant (Plaza) could be liable for aiding and abetting discrimination even if it was not plaintiff's employer or a joint employer:

Even if Plaza is not plaintiff's employer or joint employer within the meaning of the City HRL [Human Rights Law], it may be held liable to the extent it "aid[ed], abet[ted], incite[d], compel[led] or coerce[d]" the alleged discrimination ... . Plaza's objection that plaintiff failed to allege the requisite "community of purpose" is unavailing ... . Plaintiff has clearly pleaded facts suggesting that Plaza bore the requisite discriminatory intent, and that it "compel[led] or coerce[d]" the alleged discriminatory employment decisions ... .The nature of plaintiff's employer's intent and involvement may be inferred from the fact that plaintiff's employer was the entity ultimately responsible for the allegedly discriminatory employment decisions.

 

Plaintiff also sufficiently alleged the necessary elements of a gender discrimination claim, including that she was terminated "under circumstances giving rise to an inference of discrimination"... . Specifically, plaintiff alleged that a Plaza employee complained that she was "inadequate" before he had any opportunity to observe her work, when all he knew about her was that she was a woman, and thereafter continually harassed and insulted her. Although the alleged ensuing harassment and insults did not explicitly reference plaintiff's gender, the inference of gender-based discrimination is supported by the allegation that plaintiff was almost immediately replaced by a man... , as well as by the allegation that she was given a false reason for her termination - i.e., that her crane was being taken out of operation when in fact it continued to operate but with a new, male operator ... . Schindler v Plaza Constr. LLC, 2017 NY Slip Op 07182, First Dept 10-12-17

 

FORECLOSURE (MOVING FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN A FORECLOSURE ACTION SUFFICIENT TO AVOID ABANDONMENT UNDER CPLR 3215 (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT JUDGMENT, FORECLOSURE, MOVING FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN A FORECLOSURE ACTION SUFFICIENT TO AVOID ABANDONMENT UNDER CPLR 3215 (SECOND DEPT))/DEFAULT JUDGMENT (CIVIL PROCEDURE, (MOVING FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN A FORECLOSURE ACTION SUFFICIENT TO AVOID ABANDONMENT UNDER CPLR 3215 (SECOND DEPT))/ABANDONMENT (DEFAULT JUDGMENT, FORECLOSURE, MOVING FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN A FORECLOSURE ACTION SUFFICIENT TO AVOID ABANDONMENT UNDER CPLR 3215 (SECOND DEPT))

FORECLOSURE, CIVIL PROCEDURE.

MOVING FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN A FORECLOSURE ACTION SUFFICIENT TO AVOID ABANDONMENT UNDER CPLR 3215 (SECOND DEPT).

The Second Department found that the bank's moving for an order of reference within one year of defendant's default in a foreclosure action was sufficient to avoid dismissal of the action as abandoned:

CPLR 3215(c) states, in pertinent part: "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" ... . To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default ... . As long as "proceedings" are being taken, and those proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be dismissed ... . Taking the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the defendant's default is sufficient to timely initiate proceedings for entry of judgment pursuant to CPLR 3215(c) ... . Here, the plaintiff timely moved for an order of reference within one year of the defendants' default. Wells Fargo Bank, N.A. v Lilley, 2017 NY Slip Op 07157, Second Dept 10-11-17

NEGLIGENCE (MEDICAID LIEN, SETTLEMENT AWARD, PLAINTIFF'S ARGUMENT THAT THE ENTIRE SETTLEMENT AMOUNT WAS ALLOCATED TO PAIN AND SUFFERING AND NOTHING WAS AVAILABLE TO PAY THE MEDICAID LIEN REJECTED (FIRST DEPT))/MEDICAID (LIEN, NEGLIGENCE, SETTLEMENT AWARD, PLAINTIFF'S ARGUMENT THAT THE ENTIRE SETTLEMENT AMOUNT WAS ALLOCATED TO PAIN AND SUFFERING AND NOTHING WAS AVAILABLE TO PAY THE MEDICAID LIEN REJECTED (FIRST DEPT))/LIENS (MEDICAL COSTS, SETTLEMENT AWARD, PLAINTIFF'S ARGUMENT THAT THE ENTIRE SETTLEMENT AMOUNT WAS ALLOCATED TO PAIN AND SUFFERING AND NOTHING WAS AVAILABLE TO PAY THE MEDICAID LIEN REJECTED (FIRST DEPT))/PAIN AND SUFFERING (MEDICAID LIEN, SETTLEMENT AWARD, PLAINTIFF'S ARGUMENT THAT THE ENTIRE SETTLEMENT AMOUNT WAS ALLOCATED TO PAIN AND SUFFERING AND NOTHING WAS AVAILABLE TO PAY THE MEDICAID LIEN REJECTED (FIRST DEPT))/ATTORNEYS (MEDICAID LIEN, NEGLIGENCE, SETTLEMENT AWARD, PLAINTIFF'S COUNSEL'S ARGUMENT THAT THE ENTIRE SETTLEMENT AMOUNT WAS ALLOCATED TO PAIN AND SUFFERING AND NOTHING WAS AVAILABLE TO PAY THE MEDICAID LIEN REJECTED (FIRST DEPT))

NEGLIGENCE, MEDICAID, ATTORNEYS.

PLAINTIFF'S COUNSEL'S ARGUMENT THAT THE ENTIRE SETTLEMENT AMOUNT WAS ALLOCATED TO PAIN AND SUFFERING AND NOTHING WAS AVAILABLE TO PAY THE MEDICAID LIEN REJECTED (FIRST DEPT).

The First Department determined Supreme Court properly ordered payment of the full Medicaid (Department of Social Services, DSS) lien for medical bills from the over $4 million settlement in the underlying negligence action. The court rejected the claim that the entire settlement amount was directed at pain and suffering, and therefore was unavailable for the lien:

In New York, it has long been recognized that a Medicaid lien will not be defeated by the mere declaration of a plaintiff's attorney that the settlement does not relate to medical expenses... .. As we have explained, the court's determination "is not foreclosed by the form of the settlement documents or the language used by the attorneys in the settlement stipulation, if that form and language do not truly reflect the consideration of the settlement, or are chosen merely as a means to defeat DSS' recovery." ... .Among the factors we found relevant to the court's determination was whether the pleadings asserted a claim for medical expenses ... .

 

In this case, after the parties declined the opportunity for a hearing, the motion court properly considered all of the surrounding facts and circumstances in making its determination of the portion of plaintiffs' $4.3 million settlement attributable to the medical expenses paid by Medicaid. Plaintiffs never proffered any breakdown of the settlement amount, nor disclosed its terms. Rather, plaintiffs characterized the entire payment as attributable to plaintiff's pain and suffering, notwithstanding the fact that in their complaint, plaintiffs had sought recompense for the medical care and attention he had incurred. The motion court reasonably rejected this characterization as an effort to deprive DSS of its Medicaid lien.

 

Further, plaintiffs had ignored the request by DSS that it be permitted to participate in settlement discussions. As noted, although the court ordered a hearing ... , plaintiffs waived their right to it. And the court noted that the Medicaid lien, representing $250,070 paid over nine years, constituted less than 6% of the total settlement and thus did not unduly prejudice plaintiff's recovery.

 

Under these circumstances, the motion court fairly determined that DSS was entitled to recoupment of its entire lien. D.J. v 636 Holding Corp., 2017 NY Slip Op 07085, First Dept 10-10-17

REAL PROPERTY TAX LAW (A SERIES OF AGREEMENTS AND TRANSFERS OF INTERESTS IN REAL PROPERTY TO AN LLC CONSTITUTED A SINGLE TRANSACTION SUBJECT TO THE REAL PROPERTY TRANSFER TAX (FIRST DEPT))/ADMINISTRATIVE LAW (NYC REAL PROPERTY TRANSFER TAX, A SERIES OF AGREEMENTS AND TRANSFERS OF INTERESTS IN REAL PROPERTY TO AN LLC CONSTITUTED A SINGLE TRANSACTION SUBJECT TO THE REAL PROPERTY TRANSFER TAX (FIRST DEPT))/LIMITED LIABILITY CORPORATION LAW (NYC REAL PROPERTY TRANSFER TAX, A SERIES OF AGREEMENTS AND TRANSFERS OF INTERESTS IN REAL PROPERTY TO AN LLC CONSTITUTED A SINGLE TRANSACTION SUBJECT TO THE REAL PROPERTY TRANSFER TAX (FIRST DEPT))/REAL PROPERTY TRANSFER TAX (A SERIES OF AGREEMENTS AND TRANSFERS OF INTERESTS IN REAL PROPERTY TO AN LLC CONSTITUTED A SINGLE TRANSACTION SUBJECT TO THE REAL PROPERTY TRANSFER TAX (FIRST DEPT))/STEP TRANSACTION DOCTRINE (NYC REAL PROPERTY TRANSFER TAX, A SERIES OF AGREEMENTS AND TRANSFERS OF INTERESTS IN REAL PROPERTY TO AN LLC CONSTITUTED A SINGLE TRANSACTION SUBJECT TO THE REAL ESTATE TRANSFER TAX (FIRST DEPT))/R

 

REAL PROPERTY TAX LAW, ADMINISTRATIVE LAW, LIMITED LIABILITY CORPORATION LAW.

A SERIES OF AGREEMENTS AND TRANSFERS OF INTERESTS IN REAL PROPERTY TO AN LLC CONSTITUTED A SINGLE TRANSACTION SUBJECT TO THE REAL PROPERTY TRANSFER TAX (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, determined that the City of New York Tax Appeals Tribunal properly applied the step transaction doctrine to find that the transfer of interests in real property to an LLC, after a series of other transfers, constituted a single transaction and was subject to the real property transfer tax (RPTT):

On April 9, 2007, petitioner GKK2 Herald LLC acquired a 45% tenant-in-common (TIC) interest in real property located at 2 Herald Square in Manhattan, while nonparty SLG LLC (SLG)acquired the remaining 55% TIC interest in the property. On December 14, 2010, 2 Herald Owner LLC (Herald LLC) was formed. On December 22, 2010, pursuant to a "TIC Contribution Agreement," petitioner and SLG contributed their respective 45% and 55% interests in the property to Herald LLC and in return received a 45% and 55% membership interest, respectively, in Herald LLC. The agreement also asserted that petitioner would pay "any and all" transfer taxes arising out of transactions. Furthermore, SLG had the sole right to terminate the TIC Contribution Agreement and sole conditional obligation to close.

 

That same day, petitioner and SLG executed an operating agreement that provided that available profits and cash flow of the LLC would be "jointly determine[d] by members in their sole discretion," notwithstanding the set 45 percent and 55 percent membership interest. Petitioner and SLG also executed and delivered their respective deeds to their TIC interests in the property to Herald.

 

Also on December 22, 2010, the parties entered into a Membership Interest Purchase Agreement (Purchase Agreement) under which petitioner agreed to sell and SLG agreed to purchase petitioner's 45 percent membership interest in Herald for $25,312,500, in addition to petitioner's release of its pro rata mortgage obligation, in the amount of $86,062,500 (totaling $111,375,000). Petitioner thereupon withdrew as a member of Herald LLC. Recitals in the Purchase Agreement describe the various separate but related transactions: the formation of Herald LLC, execution of LLC's Operating Agreement, acquisition of real property interest by Herald LLC and sale of petitioner's membership interest to SLG.

 

Petitioner timely filed a Real Property Transfer Tax (RPTT) return reporting the sale of its membership interest in Herald LLC to SLG. The return reported no RPTT due, claiming that the transaction qualified for the "mere change of form of ownership" exemption to imposition of the RPTT (Administrative Code of the City of NY § 11-2106[b][8]). GKK 2 Herald LLC v City of N.Y. Tax Appeals Trib., 2017 NY Slip Op 07102, First Dept, 10-10-17