ARBITRATION/CIVIL PROCEDURE

 

Language in the Arbitration Agreement Supported the Applicability of the New York Law Reserving the Determination of a Statute of Limitations Defense to the Court, Even Though the Controlling Federal Arbitration Act Presumptively Reserves the Determination of a Statute of Limitations Defense to the Arbitrator

 

The First Department determined that an arbitration agreement which specifically incorporates "the arbitration laws of New York State" incorporates the New York rule that the resolution of a statute of limitations defense is for the court, not the arbitrator, even where the matter is controlled by the Federal Arbitration Act [FAA] (which presumptively reserves resolution of a statute of limitations defense to the arbitrator):

 

Under the FAA, the "resolution of a statute of limitations defense is presumptively reserved to the arbitrator, not a court" ... . "[A]n exception to this rule exists where parties explicitly agree to leave timeliness issues to the court" (Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 253 [2005]). This is in keeping with the FAA policy by which private arbitration agreements are to be enforced according to their terms (id. at 252). Unlike the FAA, New York law "allows a threshold issue of timeliness to be asserted in court" even absent an agreement to do so (...CPLR 7502 [b]; 7503 [a]).

 

The arbitration clause of the agreement before us provides that "the arbitration laws of New York State" shall govern the parties' arbitration. In Matter of Smith Barney, Harris Upham & Co. v Luckie (85 NY2d 193 [1995]...), the Court held that a choice of law provision which states that New York law shall govern both "the agreement and its enforcement" incorporated New York's rule that threshold statute of limitations questions are for the courts (id. at 202). In Diamond Waterproofing, the Court held that an agreement that merely provided that it "shall be governed by the law of [New York]" did not express an intent to have New York law govern enforcement (4 NY3d at 253). The Court reasoned that "[i]n the absence of more critical Language concerning enforcement . . . all controversies, including issues of timeliness, are subjects for arbitration" (id.).

 

The question arises as to whether the specific incorporation of "the arbitration laws of New York State" in the instant arbitration clause itself constitutes the needed "more critical language concerning enforcement" within the contemplation of Diamond Waterproofing. We hold that it does and, under the agreement, the arbitration laws of New York State include article 75 of the CPLR.  Matter of ROM Reins Mgt Co Inc v Continental Ins Co Inc, 2014 NY Slip Op 01546, 1st Dept 3-11-14

 

 

CIVIL PROCEDURE

 

Defendant Company's Failure to Keep Current Address On File With Secretary of State Was Not an Adequate Excuse for Default

 

The Second Department determined that the failure of defendant limited liability company to maintain its current address with the Secretary of State precluded defendant from successfully opposing the motion to enter a default judgment (based upon defendant's failure to answer:)

 

To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015[a][1]...). The defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the defendant's unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse ... .

 

Furthermore, the defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period of more than five years, the defendant failed to file, with the Secretary of State, the required biennial form that would have apprised the Secretary of State of its current address (see Limited Liability Company Law § 301[e]). Under these circumstances, the defendants' failure to personally receive copies of the summons and complaint was a result of a deliberate attempt to avoid notice of actions commenced against it... . Cruz v Keter Residence LLC, 2014 NY Slip Op 01575, 2nd Dept 3-12-14

 

 

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CIVIL PROCEDURE

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"Law Office Failure" Excuse for Failure to Enter a Default Judgment Within One Year Not Sufficient

 

The Second Department determined that the offered "law office failure" excuse for failing to enter a default judgment within the one-year time limit was not sufficient:

 

CPLR 3215(c), entitled "Default not entered within one year," provides, in pertinent part, that "[i]f 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" (emphasis added). "To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious" ... .

 

Here, contrary to the Supreme Court's conclusion, the plaintiff failed to offer a reasonable excuse as to why it did not seek to enter a judgment against the defendant until nearly three years after his failure to answer or appear (see CPLR 3215[c]...). The excuse of law office failure proffered by the plaintiff in its moving papers was "vague, conclusory, and unsubstantiated" and, thus, did not constitute a sufficient excuse for the plaintiff's extended delay in moving to enter a default judgment after the defendant's default... . GMAC v Minewiser, 2014 NY Slip Op 01581, 2nd Dept 3-12-14

 

 

CIVIL PROCEDURE

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Motion to Renew Granted in Interest of Justice Despite Knowledge of Facts at Time of Original Motion/Motion to Vacate Default Granted Based On Law Office Failure

 

The Second Department determined a motion to renew was properly granted, in the interest of justice, even though the facts were known at the time of the original motion.  The court also determined, under the facts, the motion to vacate a default judgment was properly granted on the ground of law office failure:

 

A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]...). However, "[t]he rule is not inflexible, and renewal may be granted in the court's discretion, in the interest of justice, even on facts that were known to the movant at the time of the original motion" ... . Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the motion of the defendants ...  which was for leave to renew that branch of their prior motion which was pursuant to CPLR 5015 to vacate so much of a prior order of the same court as granted the plaintiff's unopposed motion for leave to enter a default judgment ... .

 

Upon renewal, the Supreme Court also properly permitted the Lee defendants to interpose an answer to the complaint and precluded the plaintiff from enforcing the default judgment ... . In moving pursuant to CPLR 5015(a)(1) to vacate a default, the movant is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action ... . The Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005). Here, the ... defendants' principal affirmed that he retained prior counsel to oppose the plaintiff's motion for leave to enter a default judgment, but that prior counsel nevertheless failed to oppose the motion, which was granted without opposition. Under such circumstances, the Supreme Court providently exercised its discretion in accepting this explanation as an excusable default ... . The ...defendants also demonstrated a potentially meritorious defense to the action ... . In addition, there was no showing of prejudice to the plaintiff from the delay in answering, and no evidence of an intent by the Lee defendants to abandon any defenses to the action.  Shin v ITCI Inc, 2014 NY Slip Op 01600, 2nd Dept 3-12-14

 

 

CRIMINAL LAW

 

Defendant Properly Sentenced As a Youthful Offender on One Indictment But Not on a Second Indictment

 

The Second Department determined the sentencing court properly sentenced defendant as a youthful offender under one indictment and properly declined to sentence defendant as a youthful offender under a second indictment:

 

The defendant contends that, because the sentencing court granted him youthful offender status with respect to Indictment No. 12-00529, it was required to do so with respect to Indictment No. 12-01380. The defendant was not convicted of two crimes set forth in separate counts of a single indictment, nor was he convicted of two crimes set forth in two separate indictments consolidated for trial purposes (see CPL 720.20[2]). Therefore, the sentencing court was authorized in its discretion to determine that the defendant was a youthful offender with respect to either or both convictions ... . Accordingly, the sentencing court properly determined that it may find the defendant a youthful offender with respect to his conviction under Indictment No. 12-00529, but not with respect to his conviction under Indictment No. 12-01380.  People v Shaquille Mc, 2014 NY Slip Op 01633, 2nd Dept 3-12-14

 

CRIMINAL LAW

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Court Properly Accepted Partial Verdict and Sent the Jury Back to Continue Deliberations on the Remaining Count

 

The Third Department determined the trial court properly accepted a partial verdict and sent the jury back to deliberate on the remaining count:

 

After the jury indicated that it had reached a verdict, the court started taking the verdict but, when the jury was polled on the larceny charge, one juror stated that she had made a mistake with her verdict. As a result, and over defendant's objection, Supreme Court took the verdict on the two counts of criminal contempt and sent the jury back to further deliberate on the larceny charge. In our view, Supreme Court properly followed the procedure outlined inCPL 310.70 (1) (b), and there is no basis in the record to conclude that the court abused its broad discretion in accepting the partial verdict and then directing the jury to continue deliberations... . People v Phoenix, 2014 NY Slip Op 105148, 2nd Dept 3-13-14

 

 

CIVIL PROCEDURE

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Defendant Entitled to a Hearing On His Motion to Vacate His Conviction/Newly Discovered  Evidence Someone Else Confessed to the Crime

 

The Third Department determined defendant had presented sufficient evidence to warrant a hearing on his motion to vacate his conviction.  The court found no indication the new evidence could have been discovered with due diligence at the time of trial and the new evidence (the confession of another to the crime) was not merely impeachment evidence:

 

...[W]e find that the affidavit of Maurice Miller proffered by defendant was sufficient to warrant a hearing.Miller's affidavit was subscribed to in January 2012 and alleged, among other things, that he had witnessed another drug dealer,Alexander Llanos, sell crack to Grimsley on the day of the shooting, that defendant was not present in the area, and thatLlanos later confessed to the shooting. First addressing whether the evidence could have been obtained with due diligence prior to trial, a court must keep in mind "the practicalities of the situation" and weigh the "limited resources generally available" to a defendant ... . Miller averred that he had not contacted police at the time of the crime because he feared retaliation. Defendant was 16 years old, incarcerated and had assigned counsel. Under these circumstances, there is no indication that defendant's failure to discover this witness was the result of a lack of due diligence ... .

 

Turning to the question of whether the evidence proffered was merely impeachment evidence, the confession of Llanos to the crime was material to the ultimate issue of defendant's guilt or innocence ... . Furthermore, a defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged and, therefore, a hearing should have been held to determine the probative value of Miller's testimony and its probable effect on the verdict ... . Accordingly, we find a hearing necessary to promote justice inasmuch as the issues raised are "'sufficiently unusual and suggest searching investigation'" ... . People v Page, 2014 NY Slip Op 105312, 3rd Dept 3-13-14

 

 

CRIMINAL LAW/APPEALS

 

Concise Example of a Weight of the Evidence Review

 

The First Department reversed defendant's conviction and dismissed the indictment after a weight of the evidence review. The court found too many inconsistencies in the evidence, especially with respect to the identification of the defendant as the attacker.  The decision is a concise example of the kinds of proof problems which are considered significant under a weight of the evidence analysis:

 

Here, there were troubling discrepancies in the evidence presented to the jury. Most significantly, the complainant testified that the club was sufficiently well-lit for him to see his assailant's face while the encounter was ongoing. However, the detective who investigated the incident and interviewed the complainant testified, after having had his recollection refreshed with the DD-5 report he prepared in connection with the investigation, that the complainant told him he "did not have a clear recollection of the suspect because it was somewhat dark" in the Maribella. While the complainant denies he told the detective that, the People do not offer, nor can we perceive of, any reason why the detective would have been untruthful not only on the witness stand, but also in a contemporaneous internal report documenting the investigation.

 

Further clouding the accuracy of the complainant's identification of defendant was the photograph he picked out of an array. We acknowledge that the complainant did not represent that the person in the photo he chose was his assailant, but rather that he looked like him. Nevertheless, there is a significant difference in the appearances, especially the complexions, of the people depicted in the two photographs, which calls into question the confidence the complainant had in recalling what his attacker looked like.  People v Diaz, 2014 NY Slip Op 01661, 1st Dept 3-13-14

 

 

CRIMINAL LAW/CONSTITUTIONAL LAW/ATTORNEYS

 

Prosecutor's Creating the Impression Non-Testifying Witness Identified Defendant as Shooter Violated Defendant's Right to Confront the Witnesses Against Him

 

The Second Department, over a dissent, determined that a new trial was required because the prosecutor created the impression a non-testifying witness [Drake] had identified the defendant as the shooter.  Although the error was not preserved by objection, the court addressed the issue in the interest of justice.  The court noted as well that the defense counsel's objections to the prosecutor's comments during summation (which reinforced the impression) were erroneously overruled:

 

Generally, during cross-examination, a party cannot introduce extrinsic evidence or call another witness to contradict a witness's answers concerning collateral matters solely for the purpose of impeaching such witness's credibility ... . As the defendant correctly contends, during the cross-examination of Lloyd, the prosecutor improperly gave the impression that Drake, who did not testify, implicated the defendant while the police questioned her ... . Notably, the prosecutor acknowledged at the second trial that Drake had testified at the initial trial, and that Drake had not identified the defendant as having been present at the party.

 

The defendant's constitutional right to be confronted with the witnesses against him prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination" (Crawford v Washington, 541 US 36, 53-54; see People v Pealer, 20 NY3d 447, 453, cert denied _____US_____, 134 S Ct 105). Here, the defendant's constitutional right to be confronted with the witnesses against him was violated.  People v Lloyd, 2014 NY Slip Op 01631, 2nd Dept 3-12-14

 

 

CRIMINAL LAW/PRIVILEGE/CIVIL PROCEDURE

 

Youthful Offender Privilege Explained/Privilege Not Waived By Denial of the Act Which Was the Subject of the Youthful Offender Adjudication in Subsequent Civil Suit

 

The Second Department determined the defendant's son did not waive the privilege associated with his youthful offender status. Although defendant's son had pled guilty to an assault based upon his throwing an egg, he denied throwing the egg in his deposition during the related civil proceedings.  That denial did not waive the privilege and the plaintiff could not gain access to the records of the criminal proceedings:

 

The youthful offender statute (CPL article 720) provides special measures for persons found to be youthful offenders, which " emanate from a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals'" ... . Thus, "[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense" (CPL 720.35[1]). Further, pursuant to CPL 720.35(2), all official records and papers concerning the adjudication are sealed. * * *

 

The privilege created by this statute attaches not only to the physical documents constituting the official record, but also to the information contained within those documents ... . Thus, a person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made. However, the person must still answer questions regarding the facts underlying the adjudication ... . * * *

 

Here, the defendant's son did not waive the privilege afforded by the statute since he did not commence an action which places the conduct at issue ... . The defendant did not assert counterclaims or cross claims in this action placing the conduct at issue ..., and the defendant's son did not testify as to the confidential contents of the records ... . Contrary to the plaintiff's contention, the testimony of the defendant's son at his deposition denying that he threw the egg which allegedly struck the plaintiff's daughter did not waive the protections of the statute ... . Castiglione v James FQ, 2014 NY Slip Op 01571, 2nd Dept 3-12-14