[NOTE: THE FEBRUARY SUMMARIES ARE NOW COMPILED AND INDEXED IN ISSUE 23 OF THE DIGEST]

 

COURT OF APPEALS

 

 

CRIMINAL LAW (AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)/APPEALS (CRIMINAL LAW, AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)WAIVER OF APPEAL (CRIMINAL LAW, AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)

 

CRIMINAL LAW

 

AN ADEQUATE WAIVER OF APPELLATE RIGHTS AT SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA.

 

The Court of Appeals, in a concurring opinion by Judge Rivera, explained that an inadequate waiver of appeal at the time of a guilty plea cannot be remedied by an adequate explanation of the waived appellate rights at sentencing:

 

"It is the trial court's responsibility 'in the first instance,' to determine 'whether a particular [appellate] waiver satisfies [the] requirements' " ... . In order for a trial court's inquiry to be meaningful, by logic and reason, it must be part of the colloquy in which a court engages prior to accepting a defendant's plea ... . It would make little sense, and serve only to encourage the filing of a motion to vacate the plea on the ground that defendant did not appreciate the consequences of the waiver, if a court confirmed, after-the-fact, whether the defendant understood the nature of the rights relinquished. Thus, a court complies with its obligation to ensure that the waiver is knowing, intelligent, and voluntary, when a court adequately explains to defendant the "separate and distinct" right to appeal ... , and "at least prior to the completion of the plea proceeding, [the court] assure[s] itself that defendant adequately understood the right that [defendant] was forgoing" ... . Here, the court's explanation at sentencing came too late to satisfy the court's obligations. While the content of the court's advisement was correct, its timing deprived defendant of the right to know and consider all the terms of the plea bargain prior to his decision to plead guilty. People v Leach, 2016 NY Slip Op 01253, CtApp 2-23-16

 

 

 

 

 

 

CRIMINAL LAW (PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY)/SUPPRESSION (PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREDMENT DID NOT APPLY)/PLAIN VIEW (EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY)/SEARCHES AND SEIZURES (PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY)

 

CRIMINAL LAW, EVIDENCE.

 

PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY, SUPPRESSION SHOULD HAVE BEEN GRANTED.

 

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined the plain view exception to the warrant requirement did not apply and defendant's suppression motion should have been granted. Defendant walked in to a hospital with a gun shot wound and the police were notified. When the police officer arrived, defendant's clothes were in a clear plastic bag on the floor. The officer examined the clothes and concluded defendant had shot himself with a gun which had been in his waistband. The defendant was convicted of criminal possession of a weapon. The Court of Appeals concluded one of the conditions of the plain-view warrant-exception had not been met by the evidence in the record, i.e., there was no showing the incriminating nature of the clothes was immediately apparent to the officer:

 

"Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent" ... .

 

Against this backdrop we conclude that the hearing court erred in denying defendant's motion to suppress the clothes seized by police. There was evidence adduced at the suppression hearing that the officer who seized the clothes knew defendant to have been shot, and that defendant awaited treatment at the hospital while dressed in clothes different from those he wore at the time of the shooting. More important, however, is what the evidence presented at the suppression hearing does not establish. That evidence does not show that, before the seizure, the testifying officer knew that entry and exit wounds were located on an area of defendant's body that would have been covered by the clothes defendant wore at the time of the shooting. Similarly, the record of that proceeding contains no other indicium that could have given rise to a reasonable belief that the shooting had affected defendant's clothes. To that end, there is no record support for the lower courts' conclusion that the investigating officer had probable cause to believe that defendant's clothes were the instrumentality of a crime ... . People v Sanders, 2016 NY Slip Op 01255, CtApp 2-23-16

 

 

 

 

 

 

MALICIOUS PROSECUTION (QUESTIONS OF FACT RE: ABSENCE OF PROBABLE CAUSE AND PASSING FALSE INFORMATION TO THE PROSECUTOR PRECLUDED SUMMARY JUDGMENT IN FAVOR OF POLICE OFFICERS)/FALSE ARREST (QUESTIONS OF FACT RE: ABSENCE OF PROBABLE CAUSE PRECLUDED SUMMARY JUDGMENT IN FAVOR OF POLICE OFFICERS)

 

MALICIOUS PROSECUTION, FALSE ARREST.

 

QUESTIONS OF FACT HAD BEEN RAISED IN PLAINTIFF'S MALICIOUS PROSECUTION AND FALSE ARREST ACTIONS AGAINST POLICE OFFICERS, DEFENSE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

 

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing (modifying) the Appellate Division, determined questions of fact precluded summary judgment dismissing the complaint against police officers alleging, inter alia, false arrest and malicious prosecution. Plaintiff had been arrested and indicted for murder after signing a confession. The charges were eventually dismissed by the prosecutor. In her civil suit, plaintiff alleged the confession was essentially written by the police and she signed it only after she was subjected to hours of intense interrogation. The Court of Appeals concluded a question of fact had been raised whether the police had probable cause to arrest. The court noted that if the police pass false information on to the prosecutor, the "commencement or continuation of a criminal proceeding" element of malicious prosecution has been satisfied (with respect to the police officers). The absence of probable cause also bears on the "actual malice" element of malicious prosecution:

 

We have "never elaborated on how a plaintiff in a malicious prosecution case demonstrates that the defendant commenced or continued the underlying criminal proceeding" ... . But, by suggesting that a defendant other than a public prosecutor may be liable for supplying false information to the prosecutor in substantial furtherance of a criminal action against the plaintiff, we have implicitly recognized that such conduct may, depending on the circumstances, constitute the commencement or continuation of the prosecution ... . * * *

 

Just as in the false arrest context, the plaintiff in a malicious prosecution action must also establish at trial the absence of probable cause to believe that he or she committed the charged crimes, but this element operates differently in the malicious prosecution context because "[o]nce a suspect has been indicted, [ ] the law holds that the Grand Jury action creates a presumption of probable cause" ... . Generally, the plaintiff cannot rebut the presumption of probable cause with evidence merely indicating that the authorities acquired information that, depending on the inferences one might choose to draw, might have fallen somewhat shy of establishing probable cause ... . And, even if the plaintiff shows a sufficiently serious lack of cause for the prosecution and rebuts the presumption at trial, he or she still must prove to the satisfaction of the jury that the defendant acted with malice, i.e., that the defendant "must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served" ... .

 

... [I]n some instances, the plaintiff can simultaneously rebut the presumption of probable cause and satisfy the malice element by demonstrating that the evidence of guilt relied upon by the defendant was so scant that the prosecution was entirely baseless and maliciously instituted. In that sense, "[w]hile lack of probable cause to institute a criminal proceeding and proof of actual malice are independent and indispensable elements of a malicious prosecution action, the absence of probable cause does bear on the malice issue," and "probable cause to initiate a criminal proceeding may be so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted" ... . Moreover, in the alternative, the plaintiff may show malice and overcome the presumption of probable cause with proof that the defendant falsified evidence in bad faith and that, without the falsified evidence, the authorities' suspicion of the plaintiff would not have fully ripened into probable cause ... . Thus, we have observed that, in the context of a malicious prosecution suit against the police, the presumption may be overcome "by evidence establishing that the police witnesses have not made a complete and full statement of facts . . . to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith" ... . De Lourdes Torres v Jones, 2016 NY Slip Op 01254, CtApp 2-23-16

 

 

APPELLATE DIVISION

 

 

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT)/CIVIL PROCEDURE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)/STATUTE OF LIMITATIONS (DEFENSE MAY BE RAISED FOR THE FIRST TIME IN ANSWER TO AN AMENDED COMPLAINT)/RELATION-BACK DOCTRINE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)

 

CIVIL PROCEDURE.

 

STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT; RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL-CONTRACT ACTION WHERE ORIGINAL ACTION WAS BASED SOLELY ON A WRITTEN CONTRACT.

 

The Second Department, reversing Supreme Court determined defendant did not waive the statute of limitations defense not raised in the answer to the original complaint, but raised in the answer to the amended complaint. The court further concluded a subsequent action based upon an alleged oral agreement did not relate back to the original action based upon a written agreement and was therefore time-barred:

 

Generally, a defense based upon the statute of limitations is waived unless raised by pre-answer motion or in the defendant's answer (see CPLR 3211[e]). A defendant, however, may assert a statute of limitations defense for the first time in an answer served in response to a plaintiff's amended complaint ... . Moreover, a party may amend its pleading once without leave of court, among other circumstances, within 20 days after service of that pleading (see CPLR 3025[a]). An amended answer, made as a matter of right pursuant to CPLR 3025(a), may include a statute of limitations defense previously omitted ... . * * *

 

The relation-back doctrine permits a plaintiff to interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint ... . The relation-back doctrine is inapplicable where the original allegations did not provide the defendant notice of the need to defend against the allegations of the amended complaint ... . Moezinia v Ashkenazi, 2016 NY Slip Op 01300, 2nd Dept 2-24-16

 

 

 

 

 

CONTRACT LAW (RESCISSION FOR MISREPRESENTATIONS NEED NOT BE SUPPORTED BY AN ALLEGATION OF PECUNIARY LOSS)/RESCISSION (ACTION FOR RESCISSION BASED UPON MISREPRESENTATIONS NEED NOT ALLEGE PECUNIARY LOSS)/FRAUD (ACTION FOR RESCISSION OF A CONTRACT BASED UPON MISREPRESENTATIONS NEED NOT ALLEGE PECUNIARY LOSS)/DAMAGES (ACTION FOR RESCISSION OF A CONTRACT BASED UPON MISREPRESENTATIONS NEED NOT ALLEGE PECUNIARY LOSS)

 

CONTRACT LAW, FRAUD.

 

EQUITABLE ACTION SEEKING RESCISSION BASED UPON FRAUD NEED NOT ALLEGE PECUNIARY LOSS.

 

The First Department, in a full-fledged opinion by Justice Tom, determined a triable issue of fact had been raised about whether defendant made misrepresentations in a contract for a condominium such that the contract could be rescinded. Defendant agreed the condominium was to be used for residential purposes, but sought to operate a day care center on the premises. The court noted that pecuniary damages need not be alleged in an equitable action to rescind a contract based upon fraud:

 

Fraud sufficient to support the rescission requires only a misrepresentation that induces a party to enter into a contract resulting in some detriment, and "unlike a cause of action in damages on the same ground, proof of scienter and pecuniary loss is not needed" ... . Thus, the fourth cause of action alleging that misrepresentations in defendant's purchase application induced plaintiff to forgo exercise of its right of first refusal has a sound basis in the record, and Supreme Court properly concluded that a triable issue is presented. Board of Mgrs. of the Soundings Condominium v Foerster, 2016 NY Slip Op 01273, 1st Dept 2-23-16

 

 

 

 

 

CONTRACT LAW (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/LANDLORD-TENANT (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/WAIVER (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)

 

CONTRACT LAW, LANDLORD-TENANT.

 

NO QUESTION OF FACT RAISED ABOUT AN ALLEGED ORAL WAIVER OF A LEASE PROVISION, CRITERIA EXLAINED.

 

The First Department, in a lease-dispute, determined the tenant's claim that a provision of the lease requiring percentage rent (based upon the income of the tenant) was orally waived did not raise a question of fact. The lease specifically required any waiver to be in writing. The court explained when an oral waiver can be valid, despite the written-waiver requirement:

 

An agreement in a lease providing that no waiver of a term shall be inferred absent a writing to that effect is enforceable ... . Thus, "if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls" ... . Tenant correctly notes that the parties to a contract may, by mutual agreement, disregard a no-waiver clause. However, some performance confirming the modification must be present, and it must be "unequivocally referable to the oral modification" ...  As stated by this Court, in the context of a lease dispute, there must be "sufficient indicia that the reasonable expectations of both parties under the original lease were supplanted by subsequent actions" ... . ...

 

Here, tenant has attempted to establish that it did not pay percentage rent over the years because landlord had orally waived the requirement. However, tenant has failed to establish that nonpayment of the percentage rent was unequivocally referable to the alleged statement ... . To be sure, where a party orally waives a contract provision requiring the other party to perform an affirmative act, it may be difficult for the other party to establish the waiver other than by demonstrating that it did not do the thing it was originally required to do. Nevertheless, a nonbreaching party should not have to litigate the issue based only on the breaching party's unsupported and uncorroborated representation that it orally waived a provision. This is the very reason why many contracts require waivers to be in writing. Such a bald representation is all tenant presents here. Accordingly, it has failed to raise an issue of fact. Paramount Leasehold, L.P. v 43rd St. Deli, Inc., 2016 NY Slip Op 01258, 1st Dept 2-23-16

 

 

 

 

 

CONVERSION (ACTION WILL NOT LIE RE INTANGIBLE PROPERTY OR REAL ESTATE)

 

CONVERSION.

 

CONVERSION THEORY DOES NOT APPLY TO REAL ESTATE OR INTANGIBLE PROPERTY.

 

The Second Department determined the causes of action for conversion should have been dismissed. Conversion applies only to personal property, not, as here, to real property and a business interest:

 

"A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" ... . The subject matter of a conversion cause of action " must constitute identifiable tangible personal property'; real property and interests in business opportunities will not suffice"... . Here, the first cause of action seeks to recover damages for conversion based upon [defendant's] alleged interference with the right of the plaintiff C & B Enterprises, USA, LLC ... , "to possession of its Property," and the second cause of action seeks to recover damages for conversion based upon [defendant's] alleged interference "with [the plaintiff['s]] right to possession of his ownership of C & B." Inasmuch as the subjects of these causes of action are real property and [plaintiff's] interest in a business, respectively, a cause of action in conversion does not lie ... . C & B Enters. USA, LLC v Koegel, 2016 NY Slip Op 01281, 2nd Dept 2-24-16

 

 

 

 

 

 

 

CORPORATION LAW (NEW YORK COURTS CANNOT DISSOLVE A FOREIGN CORPORATIOIN)/JURISDICTION (NEW YORK COURT'S CANNOT DISSOLVE A FOREIGN CORPORATION)/ FOREIGN CORPORATIONS (NEW YORK COURTS CANNOT DISSOLVE)

 

CORPORATION LAW.

 

NEW YORK COURTS DO NOT HAVE THE POWER TO DISSOLVE A FOREIGN CORPORATION.

 

The First Department, in a full-fledged opinion by Justice Richter, overruling its own precedent, determined New York courts do not have jurisdiction over the dissolution of a foreign corporation:

 

We agree with the near-universal view that the courts of one state do not have the power to dissolve a business entity formed under another state's laws. Because a business entity is a creature of state law, the state under whose law the entity was created should be the place that determines whether its existence should be terminated ... . Matter of Raharney Capital, LLC v Capital Stack LLC, 2016 NY Slip Op 01425, 2nd Dept 2-25-16

 

 

 

 

 

CRIMINAL LAW (JUSTICES DISAGREE WHETHER STOLEN PROPERTY AND ASSAULT AND ROBBERY OFFENSES SHOULD HAVE BEEN SEVERED)/SEVERANCE OF COUNTS (CRIMINAL LAW, JUSTICES DISAGREE WHETHER STOLEN PROPERTY AND ASSAULT AND ROBBERY OFFENSES SHOULD HAVE BEEN SEVERED)

 

CRIMINAL LAW.

 

JUSTICES DISAGREE WHETHER STOLEN PROPERTY AND ASSAULT AND ROBBERY OFFENSES SHOULD HAVE BEEN SEVERED AS NOT SIMILAR IN LAW.

 

In affirming defendant's conviction, the First Department, in two concurring memoranda, disagreed about whether the offenses should have been severed. Defendant assaulted and robbed a subway passenger, and upon arrest several stolen MetroCards were seized. Defendant was tried on all offenses in a single trial. Justice Renwick, disagreeing with Justice Andrias, argued that the severance issue was preserved and the motion should have been granted (although the error was harmless):

 

[FROM JUSTICE RENWICK'S CONCURRING MEMORANDUM:] Under the principles set forth in People v Pierce (14 NY3d 564, 573-574 [2010]), the motion court should have granted defendant's motion to sever the counts charging possession of stolen property, relating to eight stolen MetroCards, from the other counts of the indictment, relating to an assault and robbery. The counts were not properly joined under CPL 200.20(2)(c), because they were not "similar in law," except to the extent that "both offenses involve misappropriated property," which does not suffice (id. at 574). Although the counts at issue here are more closely connected, factually, than were the counts in Pierce, we reject the People's argument that this difference warrants a different result under the statute. While factual or evidentiary connections between counts may be relevant to joinder and severance under other portions of CPL 200.20 that are not applicable here, CPL 200.20(2)(c) only involves similarity of statutory provisions defining offenses. People v Davis, 2016 NY Slip Op 01257, 1st Dept 2-23-16

 

 

 

 

 

 

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)/SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)

 

CRIMINAL LAW.

 

THE PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, DEFENDANT'S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION PROPERLY GRANTED.

 

The First Department determined Supreme Court properly dismissed the indictment on speedy trial grounds. At issue was the delay associated with obtaining DNA test results. A delay for that purpose can be an "exceptional circumstance" justifying exclusion of the delay from the speedy trial clock, but only if the People act with due diligence. The court determined numerous other delays during the course of the proceedings demonstrated the People did not act with due diligence:

 

Pursuant to CPL 30.30(4)(g), periods of delay caused by "exceptional circumstances" are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance ... . CPL 30.30(4)(g)(i) specifically makes excludable a continuance "granted because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period." Under this provision, the unavailability of DNA test results can be considered an exceptional circumstance, so long as the People exercised due diligence to obtain the results ... .

 

Acknowledging that "[t]here is no precise definition of what constitutes an exceptional circumstance," the Court of Appeals has made clear that the exception to the rule must conform to the legislative intent of discouraging prosecutorial inaction ... . People v Gonzalez, 2016 NY Slip Op 01388, 1st Dept 2-25-16