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October Page I

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Defendant Failed to Raise Question of Fact About Lack of Notice of Icy Condition


Over a dissent, the First Department determined the defendant in a slip and fall case failed to raise a question of fact re: its claim it did not have notice of the icy condition on the sidewalk. The court explained that the defendant failed to offer sufficient evidence of the condition of the sidewalk before the fall:


Plaintiff correctly contends that defendants failed to satisfy their prima facie burden since they did not submit evidence sufficient to establish that they did not have constructive notice of the hazardous icy condition on the sidewalk in front of their franchise restaurant on which plaintiff allegedly slipped …. In cases involving slip and falls on icy sidewalks, a defendant moving for summary judgment must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident … . …


Defendants' supervisor, who only visited that franchise twice per week, attested that the employees would typically respond to winter storms by shoveling the sidewalk, and then applying rock salt. However, she had no personal knowledge of whether this procedure was followed in response to this storm, did not aver that she was present on either the day of the storm or the accident, and offered no evidence as to when the sidewalk had last been inspected or cleaned of snow, ice, or other debris. Hence, defendants' evidence was "not probative of lack of actual or constructive notice," and the evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment …. As defendants failed to meet their initial burden, the motion should have been denied regardless of the sufficiency of plaintiff's opposition papers … . Rodriguez v Bronx Zoo Rest. Inc, 2013 NY Slip Op 06294, 1st Dept 10-1-13




Summary Judgment for Out of Possession

Landlord in Slip and Fall Case


In a slip and fall case, the Fourth Department determined the defendant out-of-possession landlord (McDonald’s) had met its burden demonstrating it was not responsible for snow and ice removal:


McDonald’s met its initial burden of establishing its entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact … .  McDonald’s submitted evidence demonstrating that it, as a franchisor, lacked day-to-day control over the franchisee …, and that it was an out-of-possession landlord who did not retain control over the premises and was not contractually obligated to repair or maintain the premises… . Maisano v McDonald’s …, 994, 4th Dept 10-4-13



Abutting Landowner Not Liable for Sidewalk Slip and Fall


In affirming summary judgment to defendants (abutting landowners) in a sidewalk slip and fall case, the Fourth Department explained:


“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions [on a] public sidewalk[] is placed on the municipality and not the abutting landowner” … .  That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk … .


It is undisputed that the applicable town code does not impose liability on defendants for injuries to users of the public sidewalk abutting their property.  Furthermore, the testimony and affidavits submitted by defendants in support of their motion established that the sidewalk was not constructed in a special manner for their benefit, that they did not affirmatively create the defect, and that they did not negligently construct or repair the sidewalk.  Notably, defendants’ submissions established that the sidewalk was constructed by the builder of defendants’ development, who laid it in continuation of the sidewalk on the properties neighboring defendants’ property in both directions, and that defendants did not request that the sidewalk be constructed and had no input into its construction.  Contrary to plaintiffs’ further contention, defendants established that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway… . Schroeck v Gies…, 1021, 4th Dept 10-4-13





Disclosure Appropriate in Lead Paint Case/Physician-Patient Privilege Waived


In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not entitled to full disclosure of records based on the physician-patient privilege.  The Fourth Department determined the privilege had been waived:


In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any related privileges with respect to the records sought, and that those records may be material and necessary to the defense of the action … . There may be information in plaintiff’s records, however, that is irrelevant to this action, and there are legitimate concerns with respect to “the unfettered disclosure of sensitive and confidential information” contained in those records … . Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433, 1434), we modify the order by denying defendants’ motion and cross motion to the extent that they seek authorizations for the full disclosure of the records sought and by granting plaintiff’s cross motion to the extent that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera review and the redaction of any irrelevant information… . Adams v Daughtery…, 907, 4th Dept 10-4-13







Question of Fact About Whether Village

Negligent in Maintaining Sewer System


The Fourth Department reversed Supreme Court and determined plaintiffs had raised a question of fact about whether the defendant village was negligent in maintaining the sewer system resulting in sewage leaking into plaintiffs’ basement:


We conclude that issues of fact exist whether defendant “received ‘notice of a dangerous condition or ha[d] reason to believe that the [sewer] pipes ha[d] shifted or deteriorated and [were] likely to cause injury’ ” and whether defendant neglected to “ ‘make reasonable efforts to inspect and repair the defect’ ” … .  The record establishes that plaintiffs made numerous complaints to defendant for many years prior to the incident at issue and that defendant did not consistently keep written records of the complaints it received with respect to the sewer lines.  Mason v Village of Neward, 856, 4th Dept. 10-4-13







Malpractice Action Against Pharmacy Dismissed/Applicable Standard of Care and Insufficiency of Expert Affidavit Explained


In affirming the dismissal of a malpractice complaint against a pharmacy (Rite Aid) for failure to state a cause of action, the Fourth Department explained the standard of care imposed upon a pharmacy and the necessary contents of an expert affidavit alleging the profession has established a different standard of care:


With respect to the sufficiency of the complaint before us, we note that in New York “ ‘[t]he standard of care which is imposed on a pharmacist is generally described as ordinary care in the conduct of his [or her] business.  The rule of ordinary care as applied to the business of a druggist means the highest practicable degree of prudence, thoughtfulness and vigilance commensurate with the dangers involved and the consequences which may attend inattention’ ” … .  “Generally, a pharmacist cannot be held liable for negligence in the absence of an allegation that he or she failed to fill a prescription precisely as directed by the physician or was aware that the customer had a condition that would render the prescription of the drug at issue contraindicated” … .  Here, because plaintiff failed to allege that the dosage “fell below or exceeded the medically acceptable range of dosages that should be provided under any circumstance” …, that Rite Aid did not follow the prescribing physician’s directions, or that Rite Aid was aware that the drug was contraindicated for plaintiff, the court properly concluded that the complaint fails to state a cause of action for negligence on the part of Rite Aid … .


Contrary to plaintiff’s further contention, she failed to establish through an expert’s affidavit that the pharmacy profession itself has created a different standard of care from that set forth herein.  In support of that contention, plaintiff submitted the affidavit of a pharmacist who opined that “[t]he dose [of prednisone prescribed for plaintiff] triggers the need to contact the prescribing physician to double check the dosage and to notify the patient of the very high dose and risks associated with that dose.”  “ ‘[O]rdinarily, the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would’ [be sufficient to allege a violation of a professional standard of care] .


. . Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to” establish a violation of a standard of care … . Thus, an expert’s affidavit is insufficient to establish that a standard of care exists where it is “devoid of any reference to a foundational scientific basis for its conclusions” … .  Here, the expert cites no industry standard, treatise or other authority in support of his opinion regarding the standard of care …, and plaintiff therefore failed to establish that the pharmacy profession itself imposes a different standard of care from that set forth in the applicable case law. Burton v Sciano, et al, 837, 4th Dept 10-4-13






Request to File Late Notice of Claim Granted in

Absence of Good Reason for Delay


Over a dissent, the Second Department determined Supreme Court properly allowed plaintiff to file a late notice of claim, in the absence of a good reason for the delay. The infant plaintiff was a student who injured her finger in a door at school:


The plaintiffs demonstrated that the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). "In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves" … .


Before the infant plaintiff was taken to the hospital by ambulance, her teacher told her that he would give her a dollar for every stitch she had, and he later called the infant plaintiff's home to inquire about her. During that telephone call, the teacher and the infant plaintiff's mother allegedly discussed a door at the school… Additionally, the school nurse completed a medical claim form, detailing the accident, the injury, and the treatment provided. Under these circumstances, the defendant acquired actual knowledge of the essential facts constituting the claim … . 


Furthermore, the defendant will not be substantially prejudiced in maintaining a defense on the merits as a result of the plaintiffs' delay in seeking leave to serve a late notice of claim, in light of the teacher's involvement in the incident and the nurse's documentation of the accident and injuries … . "[T]he absence of a reasonable excuse for the delay does not bar the granting of . . . leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice" … . Claud v West Babylon Union Free Sch Dist, 2013 NY Slip Op 06339, 2nd Dept 10-2-13







Mother Demonstrated Relocation to Mississippi Was In Best Interest of Child/Job and Family Support Available


In a full-fledged opinion by Justice Saxe, the First Department reversed Family Court and granted the mother’s petition for relocation with the couple’s child to Mississippi.  The mother’s inability to find sufficient work in New York, after several years of effort, coupled with job offers in Mississippi and the support of grandparents in Mississippi, were important factors:


In this relocation case, where respondent mother, Elizabeth E., seeks permission to move with the parties' child to Oxford, Mississippi, we are once again confronted with the problem of balancing a child's need for the ongoing presence of both parents in his daily life, with the custodial parent's proven inability to support herself and the child beyond the subsistence level here in New York. * * *


Admittedly, the mother here is not (yet) destitute. Her financial situation is certainly not as bleak as that of the mother in Matter of Melissa Marie G. v John Christopher W. (73 AD3d 658, 658 [1st Dept 2010]), where this Court affirmed the grant of the mother's application to relocate with the parties' child to a stable home near the mother's family in Florida, after she and the child had lived in a series of homeless shelters. However, while the need to improve the mother's and child's economic situation was far more extreme in that case, we find that the present relocation application was prompted by a legitimate, pressing need for a secure economic situation. Not only do we reject the unsupported suggestion that the mother actually had other, hidden, means of support, but we observe that proof of economic necessity does not require the parent to wait until she has used up every last dollar of her savings before taking steps to ensure that she will be able to care for the child's future economic needs. Matter of Kevin McK v Elizabeth AE, 2013 NY Slip Op 06328, 1st Dept 10-1-13




Wife’s Encumbrance of Marital Property in Violation of Court Order and Knowledge of the Court Order by Mortgage-Holder’s Agent Precluded Payout to Mortgage-Holder from Surplus Foreclosure Sale Proceeds


The Second Department determined the holder of a mortgage (Marie Holdings), which was undertaken by the wife in violation of the matrimonial court’s order not to encumber the marital residence, was not entitled to any of the surplus proceeds after a foreclosure sale of the property.  The facts that the wife violated the matrimonial court’s order and the attorney who was the agent for the mortgage holder knew of the court-order were determinative:


"The surplus funds of a foreclosure sale stand in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land" … . Accordingly, "[s]urplus money takes the place of the equity of redemption and only one who had a vested estate or interest in the land sold under foreclosure which was cut off by the foreclosure sale is entitled to share in the surplus money with priority in each creditor determined by the filing date of his lien or judgment" … . * * *


Contrary to Marie Holdings' contention, the matrimonial court had authority to determine that the husband was entitled to the surplus funds as part of the equitable distribution of the marital property … . Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order … , and because Marie Holdings' agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife's interest therein … . The matrimonial court, in its discretion, divested the wife of that interest based upon her conduct. Emigrant Mtge Co Inc v Biggio, 2013 NY slip Op 06344, 2nd Dept 10-2-13



Separation Agreement Found Unconscionable


The Fourth Department affirmed Supreme Court’s vacation of a separation agreement finding insufficient evidence the agreement was signed under duress but determining the terms of the agreement were unconscionable:


“ ‘Judicial review [of separation agreements] is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions’ ” … . “[S]eparation agreements will be scrutinized ‘to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity’ ” … .  “A separation agreement ‘may be vacated if it is manifestly unfair to one party because of the other’s overreaching or where its terms are unconscionable’ ” … .  


We agree with defendant that plaintiff did not sign the agreement under duress.  Plaintiff’s allegations that defendant threatened to evict her from the marital residence if she did not sign the agreement and that he threw the agreement at her are not substantiated by proof sufficient to justify setting it aside … .  Further, even accepting plaintiff’s allegation that defendant persistently urged her to sign the agreement, such conduct does not constitute duress, particularly inasmuch as plaintiff signed the agreement after defendant revised it in accordance with her suggested changes.


We conclude, however, that the court properly determined that the agreement was “ ‘one such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other’ ” … .  As defendant correctly concedes, the agreement gives him almost all of the marital property, including his pension and retirement assets, and we note that the value of the pension and retirement assets is not apparent from the record because defendant failed to include a copy of his net worth statement.  The agreement further provides that plaintiff may not seek maintenance and, most troubling under the circumstances of this case, that plaintiff waived her right to seek child support. Dawes v Dawes, 886, 4th Dept 10-4-13






Relief Granted By Court Went Too Far Beyond Relief Requested


In a partition action, the First Department determined Supreme Court ordered relief which went too far beyond the relief requested in the motion papers and explained the relevant principles:


Pursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only "on motion of [an] interested person" and "with such notice as the court may direct" (CPLR 5015[a] [emphasis added]…). " Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment'" … . Likewise, while a court "may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing [in] the papers on both sides," it may do so only "if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically" … .  Carter v Johnson, 2013 NY Slip Op 06333, 2nd Dept 10-2-13




Plaintiff Should Have Been Granted Extension to Serve Summons and Complaint Three Days After 120-Day Period Expired


The Second Department determined plaintiff should have been granted an extension of time to serve the summons and complaint where the statute of limitations ran out between the commencement of the action and the service.  The Second Department further determined that service of one copy of the summons and complaint upon an officer of defendant corporation (MBRI) was valid for both the corporation and the officer:


The defendants contend that MBRI was never served with a copy of the summons and complaint. We disagree. Service of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311(a)(1) and CPLR 308(1) … .Here, MBRI was served pursuant to CPLR 311(a)(1) when the plaintiff's process server delivered the summons and complaint to the individual defendant, an officer of MBRI. Accordingly, the method employed to serve MBRI was proper and, thus, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against MBRI for lack of personal jurisdiction should have been denied. 


In this case, where the statute of limitations expired between the time that the action was commenced and the time that the copy of the summons and complaint was served, that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon MBRI nunc pro tunc to September 11, 2011, should have been granted in the interest of justice … . The copy of the summons and complaint was served only 3 days after the 120-day time period of CPLR 306-b had expired, the plaintiff promptly sought relief after receiving the answer, and there was no demonstrable prejudice to MBRI attributable to the delay in service … .  Fernandez v Morales Bros Realty Inc, 2013 NY Slip Op 06345, 2nd Dept 10-2-13



Action Abandoned/Should Not Have Been Restored


In determining an action had been abandoned and should not have been restored, even though there had been a stipulation to restore the action, the Second Department wrote:


Where, as here, an action has been marked "off" the trial calendar, and more than one year has passed without its restoration to the trial calendar, the action shall be deemed abandoned and shall be dismissed (see CPLR 3404). A plaintiff subsequently seeking to restore an action to the trial calendar must demonstrate the existence of a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant … .


Although the stipulation to restore this action provides some indication that the plaintiff did not intend to abandon it when it was first marked "off," and there was sporadic activity over the period, in excess of five years, between the automatic dismissal and the motion to restore the action to the trial calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed pursuant to CPLR 3404… . Saint Mary Byzantine Catholic Church v Kalin, 2013 NY Slip Op 06355, 2nd Dept 10-2-13




Plaintiff Should Have Been Allowed to

Voluntarily Discontinue Lawsuit


The First Department determined Supreme Court should have permitted plaintiff to voluntarily discontinue the lawsuit:


The court erred in declining to permit plaintiff to voluntarily discontinue the action. CPLR 3217(b) authorizes a court to grant a motion for voluntary discontinuance "upon terms and conditions, as the court deems proper." While the determination upon such an application is generally within the sound discretion of the court …, a party ordinarily cannot be compelled to litigate and, absent special circumstances, such as prejudice to adverse parties, a discontinuance should be granted … . No special circumstances have been shown here, especially since the action is still in the early stages of litigation. Nor was there any showing that plaintiff sought the discontinuance only to avoid an adverse determination in this action ,,, . Since we are granting plaintiff's motion, the cross motion to compel discovery must be denied.  Bank of Am NA v Douglas, 2013 NY Slip 06440, 1st Dept 10-3-13






Hospital Not Necessary Party in Malpractice

Action Where Liability Vicarious


The Second Department determined a hospital which may be vicariously liable in a medical malpractice action was not a necessary party to the action:


The Supreme Court did not err in concluding that the nonparty Victory Memorial Hospital (hereinafter the hospital) was not a necessary party to this action. Contrary to the appellants' contention, even if it were shown that the hospital would be vicariously liable for any negligence of the individual defendants, or that it had a contractual obligation to indemnify those individual defendants for damages recovered from them in this action, those factors would not render the hospital a necessary party to this action (see CPLR 1001[a]…). Complete relief may be accorded to the parties in this action without the presence of the hospital, as a plaintiff may proceed against any or all joint-tortfeasors, and a judgment for or against one tortfeasor does not operate as a merger or bar of a claim against other tortfeasors … . Accordingly, the Supreme Court properly denied those branches of the motion and cross motion which were pursuant to CPLR 3211(a)(10) to dismiss the complaint for failure to join a necessary party.  Smith v Pasqua, 2013 NY slip Op 06356, 2nd Dept 10-2-13






Negligence of Dog Owners In Calling A Dog

Which Ran Into Bicyclist’s Path Is Actionable


Over a two-justice dissent, the First Department determined a lawsuit alleging the negligence of dog owners could go forward.  Plaintiff, a bicyclist, was injured when plaintiffs caused their dog to run into plaintiff’s path. After noting a change in the Court of Appeals’ approach to animal-caused injuries that are not the result of vicious propensities, the court wrote:


Recently, however, the Court of Appeals revisited Bard and Petrone when it decided an appeal of Hastings (94 AD3d 1171). In reversing the grant of summary judgment to the defendants, the Court recognized that an accident caused by an animal's "aggressive or threatening behavior" is "fundamentally distinct" from one caused by an animal owner's negligence in permitting the animal from wandering off the property where it was kept (21 NY3d 122, 125 [2013]). The Court stated that the consequence of a blanket rule against negligence claims in cases where animals displayed no vicious propensities "would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people's property" (id.). * * *


Defendants' actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball's path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants' actions, and not the dog's own instinctive, volitional behavior, that most proximately caused the accident. Doerr v Goldsmith, 2013 NY slip Op 06442, 1st Dept 10-3-13






Retroactive Transfer of Liability to Special Fund Proper


The Third Department affirmed the board’s determination that retroactive transfer of liability to the Special Fund to a time within seven years of the underlying injury was proper:


Pursuant to Workers' Compensation Law § 25-a, liability is transferred to the Special Fund "when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation" (…see Workers' Compensation Law § 25-a [1]).  Here, there is no dispute that these conditions have been met and the only issue before us is whether the Board properly transferred liability to the Special Fund retroactively to a period of time prior to the lapse of seven years following claimant's injury.  


While the retroactive transfer of liability to the Special Fund is limited to no longer than two years prior to the date of the application to reopen (see Workers' Compensation Law § 25-a [1-a]…), there is no statutory requirement that there be a seven year lapse from the date of a claimant's injury prior to the date of a retroactive transfer of liability (see Workers' Compensation Law § 25-a [1-a]).  Accordingly, we conclude that the Board's determination, that Workers' Compensation Law § 25-a does not preclude a retroactive transfer of liability to the Special Fund to a time period within seven years of the underlying injury, is not unreasonable, irrational or inconsistent with the purpose of the statute …, and the Board has set forth sufficient reasons for no longer following any prior decisions to the contrary. Canfora v Goldman Sachs…, 515529, 3rd Dept 10-3-13



Accidental Disability Retirement Benefits (Police Officers)


Injuries In Line of Duty Not Due to “Accidents”


The Third Department confirmed the comptroller’s determination that the injuries suffered by a police officer were not the result of “accidents” and therefore did not justify the award of accidental disability retirement benefits.  The officer slipped on a wet metal-encased curb while directing traffic and was subsequently injured again when a suspect he was chasing resisted arrest.  The Third Department wrote:


Initially, we note that petitioner has the burden of demonstrating that he is entitled to receive accidental disability retirement benefits, and the Comptroller's determination will be upheld if supported by substantial evidence … .  In order to qualify as an accident, the precipitating event must be "a sudden, fortuitous mischance that is unexpected, out of the ordinary and injurious in impact" … .  Notably, an injury will not be considered accidental if it "'results from an expected or foreseeable event arising during the performance of routine employment duties'" … . Matter of Rodriques v DiNapoli, 515935, 3rd Dept 10-3-13






Statements Constituted Opinion, Not Facts/Defamation Complaint Against Syracuse Basketball Coach Dismissed for Failure to State a Cause of Action


Over a two-justice dissent, the Fourth Department affirmed the dismissal of a defamation action at the pre-answer stage, finding that the statements attributed to the defendant in the complaint constituted opinion, not fact.  The defendant (coach of the Syracuse University basketball team) characterized allegations made by plaintiff (accusing defendant’s friend and long-time assistant coach, Bernie Fine, of sexual improprieties) as lies. Taking the statements attributed to defendant as a whole, the Fourth Department determined they amounted to opinion and were therefore not actionable:


“Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation . . . Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue” … .  “The issue at this early, preanswer stage of the litigation is whether plaintiff[s’] [complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion” … .  “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … .  Although the Court of Appeals has acknowledged that “[d]istinguishing between opinion and fact has ‘proved a difficult’ task” …, it has provided three factors for courts to consider in determining whether the alleged defamatory statements are actionable statements of fact or nonactionable statements of opinion ….


We agree with plaintiffs that defendant’s statements that they lied and that they did so out of a financial motivation are statements of fact when viewed in light of the first two factors set forth in Mann, i.e., those statements use specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false” ….  We note in particular that, when defendant was asked during the interview what plaintiff’s “possible motivation would be to tell his disturbing story at this time,” he responded that plaintiff was “trying to get money.  He’s tried before.  And now he’s trying again.”  Although that statement may be interpreted as implying that defendant knew facts that were not available to the reader…, we are nevertheless mindful that we “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about . . . plaintiff” … .  Furthermore, we must “avoid[] the ‘hypertechnical parsing’ of written and spoken words for the purpose of identifying ‘possible fact[s]’ that might form the basis of a sustainable libel action” … .  


Defendant’s statements also must be viewed in light of the third factor set forth in Mann, i.e., “whether either the full context of the communication in which the statement[s] appear[] or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” … .  Defendant additionally stated in the interview with  “So, we are supposed to do what? Stop the presses 26 years later?  For a false allegation?  For what I absolutely believe is a false allegation?  I know [plaintiff is] lying about me seeing him in his hotel room.  That’s a lie.  If he’s going to tell one lie, I’m sure there’s a few more of them . . . I have never been in Bernie Fine’s hotel room in my life . . . Now, could I have once . . . one time?  I have a pretty good recollection of things, but I don’t ever recollect ever walking into Bernie Fine’s hotel room.  Ever.”  In his interview with ESPN, defendant stated:  “I know this kid, but I never saw him in any rooms or anything . . . It is a bunch of a thousand lies that [plaintiff] has told.  You don’t think it is a little funny that his cousin . . . is coming forward? . . . He supplied four names to the university that would corroborate his story.  None of them did . . . [T]here is only one side to this story.  He is lying.”


We conclude that defendant’s statements demonstrate his support for Fine, his long-time friend and colleague, and also constitute his reaction to plaintiff’s implied allegation, made days after Penn State University fired its long-term football coach, that defendant knew or should have known of Fine’s alleged improprieties.  We therefore conclude that the content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ”… . Davis and Lang v Boheim…, 836, 4th Dept 10-4-13






Statutory Moratorium On Rate Appeals Applied

Retroactively to All Appeals Prior to April, 2015


The Fourth Department reversed Supreme Court and determined that a 201/2011statutory moratorium on Medicaid reimbursement rate appeals filed by nursing homes applied retroactively to all appeals filed before April, 2015:


We agree with respondents that section 2808 (17) (b) and (c) [Public Health Law] apply retroactively to petitioners’ rate appeals.  The seminal case on whether statutes are to be applied retroactively is Majewski v Broadalbin-Perth Cent. Sch. Dist. (91 NY2d 577, 584), which provides, in relevant part, that “[i]t is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it” (see generally McKinney’s Cons Laws of NY, Book 1, Statutes § 51 [b]).  We conclude that the language of the statute requires that it be applied retroactively.  Public Health Law § 2808 (17) (b) states that, for the period from April 1, 2010 through March 31, 2015, “the [C]ommissioner shall not be required to revise certified rates of payment . . . for rate periods prior to April [1, 2015], based on consideration of rate appeals filed by residential health care facilities” in excess of the monetary cap.  While there is no explicit statement that the moratorium and cap shall apply to rate appeals filed before April 1, 2010, the statute specifically states that no revisions are required for any period before April 1, 2015 where the revision would emanate from a rate appeal filed by a residential health care facility.  In our view, the necessary implication of that language is that the statute applies to any rate appeal seeking a revision for any period before April 1, 2015, including any revisions resulting from rate appeals filed before the statute took effect. * * *


Inasmuch as the moratorium applies retroactively to petitioners’ rate appeals, petitioners do not have a clear legal right to relief, and their [Article 78 mandamus] petition must be denied… . Matter of Woodside Manor Nursing Home… v Shah…, 862, 4th Dept 10-4-13






Right of First Refusal Not Triggered by Partition Action


In a partition action, the Fourth Department determined the agreement between the parties was a right of first refusal, not an option to purchase, which was not triggered by the partition action.  The court explained the operative law:


Plaintiff and Waite [one of the defendants] are tenants in common and acquired the property at issue by an executor’s deed pursuant to the settlement of their mother’s estate.  In settling that estate, plaintiff, Waite and the other named defendants signed a settlement agreement providing that plaintiff and Waite “agree to grant to [each of the other named defendants] the option to purchase the . . . property, in the event that [plaintiff and Waite], either jointly or severally, determine to sell, assign or transfer the . . . property to someone other than each other.  The option price shall be [$120,000] plus the costs of any improvements made by [plaintiff and Waite] to the premises subsequent to [their] purchase of the premises.  Said option may be prepared in recordable form by any or all of the [other named defendants] at their own cost and expense, and [plaintiff and Waite] will execute any said recordable option.  Upon receipt of an offer to purchase the premises, except from [each other], [plaintiff and Waite] shall notify each of the [other named defendants] then living, in writing of the proposed sale of the premises, and the [other named defendants] shall have sixty (60) days to exercise their option as granted herein.” * * *


We conclude that the right bestowed by the settlement agreement … is a right of first refusal, not an option to purchase, despite the use of the term “option” therein …, and thus that Supreme Court mistakenly treated the contractual right as an option to purchase.  “A right of first refusal is a dormant right that is triggered when an owner decides to sell the property to a third party at an agreed-upon price” …, and those are the applicable facts set forth in the settlement agreement.


 We agree with Waite on her appeal that the court erred in determining that the contractual right was triggered upon plaintiff’s commencement of the instant action, for partition and sale.  It must first be determined in a partition action whether the property may be partitioned, i.e., divided among the owners in some fashion, without great prejudice to them, and “partition sale” is a secondary consideration only in the event that partition greatly prejudices the owners (see RPAPL 901 [1]…).  Thus, commencement of the partition action did not trigger the right of first refusal inasmuch as a partition, as opposed to a partition sale, would not result in a transfer of the property to a third party.  Furthermore, no offer of purchase from a third party triggered either the right of first refusal or the contractual obligation of plaintiff or Waite pursuant to the settlement agreement or recorded document. Tuminno v Waite…, 915, 4th Dept 10-4-13






Stay of Arbitration Properly Denied/Collective Bargaining Agreement Allowed Issue to Be Determined in Arbitration


In affirming Supreme Court’s dismissal of an Article 75 petition seeking a permanent stay of arbitration (with respect to a collective bargaining agreement [CBA]), the Fourth Department explained the operative analysis:


In determining whether an issue is subject to arbitration under a collective bargaining agreement (CBA), a court must apply the two-step analysis set forth in Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.) (42 NY2d 509, 513).  “First, a court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … .  If the court determines that there is no such prohibition and thus that the parties have the authority to arbitrate the grievance, it proceeds to the second step, in which it must determine whether that authority was in fact exercised, i.e., whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration … .  With respect to the second step, where there is a broad arbitration clause such as the one in the CBA at issue, “[a] determination of arbitrability is limited to ‘whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA’ ” … .  “Succinctly, the test centers on two distinct inquiries as to the public parties’ purported entry into the arbitral forum:  may they do so and, if yes, did they do so” … .  Here, with respect to the issue whether petitioner properly followed the procedures mandated by the CBA in terminating the employee in question, we conclude that the court properly determined that the parties had the authority to agree to arbitrate this grievance, and that they in fact agreed to do so.  Matter of Arbitration…, 1019, 4th Dept 10-4-13



Police Violated Defendant’s Constitutional Rights by Pushing Door Open and Entering Apartment When Defendant Answered the Door---The “Payton” Violation (a Warrantless Arrest Inside Home) Mandated Suppression of Defendant’s Statement


Over a two-justice dissent, the Second Department determined defendant was arrested pursuant to a Payton violation (a warrantless arrest inside defendant’s home) and his subsequent statement should have been suppressed. The police were at defendant’s door with the complainant who told the police defendant had assaulted her.  When defendant opened the door, the complainant identified him as the assailant.  The defendant tried to shut the door, but the police pushed their way in and arrested him. The trial court felt there was no Payton violation the defendant’s attempt to shut the door after the identification was akin to “fleeing” or “exigent circumstances.”  The Second Department, in a full-fledged opinion by Justice Balkin, disagreed and wrote:


In Payton v New York (445 US 573), the United States Supreme Court announced a clear and easily applied rule with respect to warrantless arrests in the home: "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant" (Payton v New York, 445 US at 590). The rule under the New York Constitution is the same (see NY Const, art 1, § 12; People v Levan, 62 NY2d 139, 144). Payton and Levan require suppression of the defendant's statement under the clear, undisputed facts of this case. 


Certainly, if the defendant's encounter with the police had begun outside his home, or even on the threshold of it, the defendant could not have avoided arrest by fleeing into his home (see United States v Santana, 427 US 38, 43). But, contrary to the hearing court's characterization, the defendant's attempt to close his door was not "akin" to "fleeing"; he had never left the constitutionally protected interior of his home in the first place, even partially, so he did not flee "into" his home … . People v Gonzales, 2013 NY Slip Op 06381, 2nd Dept 10-2-13



Papers Sufficient to Require Suppression Hearing---No Need to Allege Expectation of Privacy Where Police Act Illegally


In finding defendant’s papers were sufficient to require a suppression hearing (re: the suppression of a gun), the Second Department noted that the defendant was not required to demonstrate he had a legitimate expectation of privacy in the area the gun was found because the motion alleged the gun was seized as a result of illegal police conduct:


A motion to suppress evidence must state the grounds of the motion and contain sworn allegations of fact supporting such grounds (see CPL 710.60[1]…). "It is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue" (…see CPL 710.60[3][b],,,). In testing the sufficiency of a defendant's factual allegations, a court should consider "(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information" … . 


Here, the allegations in the defendant's papers, when considered in the context of the information provided by the People, raised a factual dispute requiring a hearing … . Contrary to the People's contention, the defendant's motion papers contained the requisite sworn allegations of fact … . Moreover, the defendant was not required to demonstrate that he had a legitimate expectation of privacy in the area where the gun was found …, since, under both the defendant's and the People's versions of events, the dispositive issue was whether the gun was recovered as a direct result of unlawful police action …. In light of the foregoing, the County Court should not have denied suppression without conducting a hearing. Accordingly, we remit the matter to the County Court, Suffolk County, for a hearing and a new determination thereafter of that branch of the defendant's motion which was to suppress physical evidence.  People v Jennings, 2013 NY Slip Op 06384, 2nd Dept 10-2-13



Failure to Inquire About Defendant’s Understanding of Intoxication Defense Required Vacation of Guilty Plea


The Second Department determined defendant’s guilty plea should be vacated because the defendant could not recall the events due to his intoxication and the court made no inquiry about whether the defendant was aware of the significance of his intoxication (a possible intoxication defense):


The defendant pleaded guilty to assault in the second degree (see Penal Law § 120.05). At the plea allocution, the defendant indicated that he had a very limited recollection of the incident, but admitted his guilt based on photographs, police reports, and witness statements. The County Court acknowledged that the defendant could not recollect the incident because he had been drinking alcoholic beverages at the time of the assault, and that the defendant's alleged intoxication at the time of the incident could negate the intent element of the crime of assault in the second degree (see Penal Law §§ 15.25, 120.05). While defense counsel stated that he had discussed "a possible intoxication defense" with the defendant and that the defendant understood it, the court made no inquiry of the defendant to ensure that he was aware of the significance of his claim of intoxication … . The court's failure to conduct any such inquiry of the defendant requires vacatur of the defendant's plea of guilty… . People v Jiminez, 2013 Slip Op 06386, 2nd Dept 10-2-13



Checkpoint Vehicle Stop Illegal


The First Department determined a vehicle checkpoint stop to control automobile thefts was unconstitutional:


The suspicionless vehicle checkpoint stop that led to the recovery of contraband in this case was constitutionally impermissible because the primary purpose of the checkpoint was "essentially to serve the governmental interest in general crime control" … . It is undisputed that the primary purpose of the checkpoint was to deter or control auto theft. Contrary to the People's assertions, the interest in "controlling automobile thefts," as described in this case, "is not distinguishable from the general interest in crime control" … . Under the applicable precedents, a secondary goal of promoting highway safety does not justify a checkpoint stop. People v Velez. 2013 NY Slip Op 06437, 1st Dept, 10-3-13




Flawed Jury Instruction Re: Assisted Suicide Affirmative Defense to Murder Required New Trial


In a full-fledged opinion by Justice Richter, the First Department determined the trial court’s jury instruction on the assisted-suicide affirmative defense to murder did not accurately instruct the jury on the elements of the defense and a new trial was required. Apparently there was no question that the decedent wanted to die and that the defendant participated in some way in decedent’s death.  The central questions were whether defendant held the knife while the decedent leaned into it or whether defendant actively stabbed the decedent. The First Department noted that the prosecutor was not obligated to instruct the grand jury on the assisted-suicide affirmative defense because it is a mitigating defense (reducing the charge from murder) not a complete defense.  With respect to the elements of the assisted-suicide affirmative defense, the court wrote:


If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury's verdict convicting defendant of murder was based on legally sufficient evidence and was not against the weight of the evidence … . The testimony of the People's medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant's claim that he merely held the knife. 


But the jury was also free to accept defendant's account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant's version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant's version supported the assisted suicide defense because it decided to give the charge … . 


Under these circumstances, the portion of the court's instruction that the assisted suicide defense is not made out if defendant "actively" caused the decedent's death, along with the expansive definition of the word "active" given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word "active," nor its antonym "passive," appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. People v Minor, 2013 NY Slip Op 06444, 10-3-23



Mode of Proceedings Error Re: Jury Note Required

Reversal/Molineux Rulings Flawed


The Fourth Department reversed defendant’s conviction finding the trial court committed a mode of proceedings error in responding to a jury note. The judge instructed the jury in the jury room outside the presence of the defendant.  In addition, the Fourth Department found fault with the procedure used by the trial court to address the admission into evidence of defendant’s prior bad acts, as well as some of the rulings that such evidence was admissible:


We agree with defendant that County Court committed a mode of proceedings error when it responded to a jury note off the record, in the jury room, and outside the presence of defendant, with no indication that defendant had waived his right to be present.  CPL 310.30 provides that, upon receiving a request for further instruction or information from the jury during deliberations, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.”  It is beyond cavil that “[a] defendant has a fundamental right to be present at all material stages of a trial . . . [and] CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal” … .  The court properly read the jury note on the record in the presence of defendant, defense counsel, and the prosecutor, and it then obtained a clear stipulation from both attorneys concerning the accuracy of its intended response to the jury’s request for information.  We nevertheless conclude that the court committed reversible error by subsequently instructing the jury off the record, in the jury room, and outside the presence of defendant (see CPL 310.30…).


Because there must be a retrial, we deem it appropriate to address defendant’s contention that the court abused its discretion by permitting testimony concerning defendant’s prior bad acts in the days, months, and years preceding the subject arson.  “[A] defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264) or to a pretrial hearing on the admissibility of such evidence” ….  Nevertheless, “a prosecutor seeking to introduce Molineux evidence ‘should ask for a ruling out of the presence of the jury’ . . . and . . . any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, ‘just before the witness testifies’ ” … .  


Here, that procedure was not followed.  Instead, the court improperly afforded defense counsel a standing objection with respect to testimony concerning defendant’s prior bad acts while affording the prosecutor the opportunity to ask one of the victims of the arson, who was defendant’s neighbor, about defendant’s prior bad acts over a period as long as 10 years before the arson.  It was particularly improper to allow that witness to testify that, as a result of defendant’s prior bad acts, he had concerns about the safety of his children and pets.  “It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged” … .  Although defendant’s bad acts within a few days of the arson could be deemed relevant to such issues as motive and intent, testimony concerning defendant’s bad acts in the preceding weeks, months or years was irrelevant to any issue in the case and only could have prejudiced defendant by suggesting to the jury that he was an erratic and potentially dangerous person who had the propensity to commit the crime at issue … . People v Cornell, 870, 4th Dept 10-4-13



Erroneous Molineux Rulings Required Reversal


The Fourth Department reversed defendant’s conviction, finding error in the trial court’s ruling evidence of prior bad acts was admissible:


Before the trial, the court granted the People’s motion to present Molineux evidence for the limited purpose of proving the absence of mistake in defendant’s possession of the forged checks (see People v Molineux, 168 NY 264, 293-294).  Pursuant to the court’s ruling, the People presented evidence on their direct case concerning three of defendant’s prior convictions as well as one investigation that did not result in criminal charges, arising from defendant’s conduct in writing checks on his accounts with knowledge that those accounts either were closed or had insufficient funds.  The court erred in ruling that such evidence was relevant to establish the absence of mistake.  The disputed issues at trial were whether defendant knew that the checks were forged and whether defendant was a knowing participant in, or an innocent victim of, a fraudulent check scheme.  Defendant’s prior bad acts were not “directly relevant” to the absence of mistake in defendant’s possession of the forged checks because those prior bad acts are not probative of defendant’s ability to recognize that the checks were forgeries or that he had become knowingly involved in a fraudulent check scheme … .  Contrary to the People’s contention, the Molineux evidence was not admissible to prove defendant’s “familiarity with check frauds and his ability to deceive individuals through banking schemes” inasmuch as such evidence “tends only to demonstrate the defendant’s propensity to commit the crime charged” .. .  Furthermore, the Court of Appeals has expressly declined to create a “ ‘specialized crime’ exception to Molineux” when the charged crime is one “that require[s] unusual skills, knowledge and access to the means of committing it” … .  We therefore conclude that evidence of defendant’s prior bad acts was inadmissible as a matter of law … .


We further conclude in any event with respect to the court’s Molineux ruling that the probative value of the evidence did not outweigh its prejudicial effect … .  The evidence was “of slight value when compared to the possible prejudice to [defendant]” and therefore should not have been admitted … .  We further conclude that the error in admitting the evidence is not harmless …, even in view of the court’s limiting instruction.  People v Mhina, 871, 4th Dept 10-4-13



Case Sent Back to Suppression Court to Determine

Whether Police Had Sufficient Reason for Asking About

Drugs and Weapons After Traffic Stop


The Fourth Department sent the case back for a determination whether the police had a founded suspicion of criminal activity to justify an inquiry about the presence of drugs of weapons after a traffic stop:


We agree with defendant that Supreme Court erred in refusing to suppress the gun recovered from the vehicle based upon the inevitable discovery doctrine.  The testimony at the suppression hearing established that, during a lawful traffic stop, one of the police officers asked defendant whether there were any drugs or weapons in the vehicle before instructing defendant to exit the vehicle.  After defendant admitted to having marihuana on his person, the police officer asked defendant to exit the vehicle and, following suspicious behavior by another occupant of the vehicle, searched the vehicle and found a gun in plain view.  Notably, the court did not address whether the officer had the requisite founded suspicion of criminal activity to justify an inquiry concerning the presence of drugs or weapons in the vehicle … . Instead, the court refused to suppress the gun on the ground that the police “could” have taken various actions after the traffic stop that would have inevitably led to the discovery of the gun.  The People, - however, did not raise the inevitable discovery doctrine as a ground for denying suppression of the gun, nor did they meet their burden of “demonstrat[ing] a very high degree of probability that normal police procedures would have uncovered the challenged evidence independently of [a] tainted source”… . People v Sykes, 849, 4th Dept 10-4-13



Restitution to Police Department Re: Expenses of Drug Bust Proper


The Fourth Department determined defendant was properly ordered to pay restitution to the police department in a drug case, but that payment of a surcharge should not have been ordered:


… [A] defendant convicted of, inter alia, a class C “ ‘felony involving the sale of a controlled substance’ may be ordered to repay a law enforcement agency ‘the amount of funds expended in the actual purchase’ of a controlled substance” … .  Section 60.27 (9) was amended in 1991 “to authorize restitution to law enforcement agencies for unrecovered funds utilized to purchase narcotics as part of investigations leading to convictions” … .  We therefore conclude … that the court properly directed defendant to pay restitution to the City of Oswego Police Department for the funds it expended in buying drugs from him.  


The People correctly concede with respect to defendant’s further contention … that the court erred in imposing a surcharge on that restitution order.  Penal Law § 60.27 (9) further provides that “[a]ny restitution which may be required to be made to a law enforcement agency pursuant to this section . . . shall not include a designated surcharge.”  People v Boatman, 940, 4th Dept 10-4-13



Case Sent Back to Suppression Court for Hearing to Determine Admissibility of Statements


The Fourth Department sent the case back to the suppression court for a hearing to determine the admissibility of statements that had not been included in the initial 710.30 notice provided in connection with a prior indictment that had been dismissed. The statements were included in the 710.30 notice provided in connection with the superseding indictment. The Fourth Department determined the defendant was entitled to a hearing on the admissibility of the statements:


…[W]e conclude that the court properly refused to preclude the additional statements included in the CPL 710.30 notice served by the People after the superseding indictment was filed … .  “Those [statements] were not referenced in the CPL 710.30 notice that was served in connection with the original indictment, but the record establishes that the People filed the superseding indictment out of necessity after the court dismissed . . . the original indictment” … .  We agree with defendant, however, that the court erred in determining the admissibility of the additional statements without reopening the Huntley hearing and affording defendant a further opportunity to contest their admissibility.  The court concluded that the statements were spontaneously made and therefore not subject to suppression.  At the time of the Huntley hearing conducted in conjunction with the initial indictment, however, the only issue before the court with respect to the additional statements was whether they should be precluded on the ground that they had not been included in the first CPL 710.30 notice.  Consequently, inasmuch as the voluntariness of the additional statements was not at issue at that time, defendant had no reason or opportunity to explore the issues of spontaneity or the effect of the previously-given Miranda warnings, or to raise any other issues regarding the admissibility of those statements.  Thus, “the hearing must be reopened” to afford him that opportunity… . People v Roberts, 945, 4th Dept 10-4-13



Suppression Motion Should Have Been Granted---Defendant Arrested Before Police Had Probable Cause


The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause.  A baggie containing drugs and a dagger were not found until after the illegal arrest:


…[T]he police were justified in approaching the vehicle outside the bar because they had a “founded suspicion that criminal activity [was] afoot,” rendering the police encounter lawful at its inception … . We further conclude that the police were justified in pursuing the vehicle inasmuch as “defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that [he] may be engaged in criminal activity, [gave] rise to reasonable suspicion, the necessary predicate for police pursuit” … .  Such reasonable suspicion also gave the police the authority to stop the vehicle … . 


…[W]e conclude that an arrest occurred here when defendant was handcuffed and placed in the back of a police car.  Under such circumstances, “a reasonable man innocent of any crime, would have thought” that he was under arrest … .  “[V]arious factors, when combined with the street exchange of a ‘telltale sign’ of narcotics, may give rise to probable cause that a narcotics offense has occurred.  Those factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any ‘additional evidence of furtive or evasive behavior on the part of the participants’ ” … .  Here, the police observed neither a “ ‘telltale sign’ ” of narcotics, such as a glassine baggie, nor the exchange of currency … .  Thus, despite the observations of the police outside the bar, their experience in drug investigations, and defendant’s flight, we conclude that the police did not have probable cause to arrest defendant before the dagger and first baggie were observed. People v Lee, 1005, 4th Dept 10-4-13



Indictment Should Not Have Been Dismissed

Based on Prosecutorial Misconduct


In determining the trial court erred in dismissing the indictment based upon the prosecutorial misconduct, the Fourth Department explained:


“ ‘[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” … .  As the Court of Appeals has stated, “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .


Here, the prosecutor was required to establish that the four-year-old victim could provide unsworn testimony, but failed to do so… . The prosecutor also violated the unsworn witness rule during an attempt to persuade the child to testify about the incident … .  Nevertheless, we conclude that the prosecutor did not thereby engage in conduct that was fraudulent in nature, nor was the prosecutor’s conduct so egregious as to impair the integrity of the grand jury proceedings … .  We further conclude that the remaining evidence is legally sufficient to sustain the indictment.  People v Elioff, 1002, 4th Dept 10-4-13






“Anders” Brief Rejected


In rejecting an “Anders” brief, the Second Department noted:


The brief submitted by the appellant's counsel pursuant to Anders v California (386 US 738) was deficient. The body of the brief---which was only 1½ pages in length---did not contain a statement of facts, and did not contain any case citations. The brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted "as an active advocate on behalf of his . . . client" … or that he diligently examined the record, we must assign new counsel to represent the appellant… .  People v McNair, 2013 NY Slip Op 06389, 2nd Dept 10-2-13






Canadian Attorney Practicing in New York Properly

Convicted of Unlicensed Practice of Law


The First Department affirmed the conviction of a Canadian attorney (not admitted in New York) whose New York law firm, which employed members of the New York bar, represented clients in immigration matters. The complainants were former clients who testified they retained the defendant’s law firm based upon their belief defendant was licensed to practice in New York. The complainants testified they did not receive the services they paid for and were not refunded their money.  The defendant was charged with grand larceny, scheme to defraud and unlicensed practice of law.  The First Department determined there was sufficient evidence to support the convictions even though there was no evidence defendant explicitly represented she was licensed to practice law in New York.  Several unique issues were discussed including: the Attorney General’s (AG’s) loss of documentary evidence (advertisements and retainer agreements) so the appellate court was unable to review them; the Attorney General’s jurisdiction over the criminal prosecution under Executive Law 63; the power of the Division of State Police to request that the Attorney General prosecute the case; the law of the case with respect to the First Department’s reversal of defendant’s conviction after her first trial and its refusal to dismiss the indictment; and the trial court’s refusal to substitute counsel for the defendant and giving defendant the choice to proceed pro se (which she did).  In discussing the sufficiency of the evidence, the First Department wrote:


Viewing the evidence in the light most favorable to the AG, as we must …, we find that the evidence was sufficient to convict defendant. It was not unreasonable for the jury to have concluded that by promoting herself in an advertisement as being a lawyer specializing in immigration, and having an office in New York, defendant intended to signal that she was licensed to practice in New York. That some of the lawyers working in the office were admitted in New York is of little moment, since defendant traded almost exclusively on her own reputation and expertise in seeking to attract clientele. Further, the fact that defendant's advertisements made clear that she was admitted to practice in Canada did not preclude the possibility that a client would reasonably believe that she was also admitted in New York, but found it unnecessary to publicize that fact based on her location in Manhattan. 


It was also not irrational for the jury to conclude that defendant had an economic motive for concealing her lack of a New York license, despite the fact that such a license was not necessary to process her clients' immigration applications. Aside from the cachet that prospective clients would have attributed to having a lawyer who was a member of the New York bar, the jury could have concluded that CPI's clients valued the fact that the attorney they retained was subject to the jurisdiction of local disciplinary authorities if they were unsatisfied with defendant's work (as many of them were). Indeed, it is clear that CPI's clients placed a large premium on defendant's bar status, given that each of them testified that they would not have retained the firm had they known that defendant was not admitted to practice in New York. People v Codina, 2013 NY Slip Op 06291, 1st Dept 10-1-13






Failure to Make Motion for Trial Order of Dismissal

Not Ineffective Assistance


In affirming defendant’s conviction, the Fourth Department determined defense counsel’s failure to make a motion for a trial order of dismissal did not amount to ineffective assistance of counsel:


…“[D]efense counsel’s failure to make a specific motion for a trial order of dismissal at the close of the People’s case [does] not constitute ineffective assistance of counsel, inasmuch as any such motion would have had no chance of success” … .  Indeed, we note that defendant does not contend on appeal that the evidence at trial is legally insufficient to support the conviction.  People v Hicks, 1008, 4th Dept 10-4-13



Writ of Prohibition Barring Retrial Granted---Mistrial Granted Without Consent of Defendant Was Not Justified


The First Department granted a writ of prohibition barring a retrial of the defendant because the judge ordered a mistrial without the consent of the defendant based upon a comment made by defense counsel in summation. The First Department determined the comment was not sufficiently prejudicial to justify the mistrial:


Jeopardy attaches once a jury has been selected and sworn … . When a mistrial is declared without the consent or over the objection of a criminal defendant, the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in section 6 of article I of the New York State Constitution bars retrial for the same offense or offenses unless there is a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated … . Here, as the People concede, counsel's summation comment was not overly prejudicial and provided no basis for a mistrial on "manifest necessity" or "ends of public justice" grounds. Matter of Smith v Williams, 2013 NY Slip Op 06329, 1st Dept 10-1-13



Ineffective Assistance of Counsel Mandated New Trial---Difference Between Federal and State Ineffectiveness Criteria Explained


In determining the defendant was entitled to a new trial because of the ineffectiveness of his trial counsel, the Second Department explained the difference between the federal and state criteria for ineffective assistance.  Supreme Court had vacated defendant’s murder conviction (ineffective assistance) but allowed the conviction for criminal possession of a weapon to stand.  The Second Department explained that, even though there was evidence to support the criminal possession of a weapon charge, the state ineffective assistance criteria required a new trial on all counts:


A defendant is guaranteed the effective assistance of counsel under both the federal and state constitutions (see US Const, amend VI; NY Const, art I, § 6…). The state standard is considered "somewhat more favorable to defendants," focusing on "the fairness of the process as a whole rather than its particular impact on the outcome of the case" …. "[T]he constitutional requirements [for the effective assistance of counsel] are met when the defense attorney provides meaningful representation" …. While prejudice to the defendant is a necessary factor under the federal standard, embodied in a "but for" test …, under the state standard, "a defendant's showing of prejudice is a significant but not indispensable element in assessing meaningful representation" …. "To meet the New York standard, a defendant need not demonstrate that the outcome of the case would have been different but for counsel's errors" … . Generally, harmless error analysis is inapplicable to an ineffective assistance of counsel claim arising from counsel's performance at trial … . 


Here, the litany of failures by defense counsel documented by the Supreme Court established that the defendant was denied "meaningful representation" by his trial attorney. Notwithstanding the fact that there was strong evidence that the defendant possessed a loaded firearm during the incident in question, the New York State constitutional standard for the effective assistance of counsel "is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" … . People v Canales, 2013 NY Slip Op 06376, 2nd Dept 10-2-13






Trial Judge Should Have Allowed Slightly Late Peremptory

Challenge---Conviction Reversed


The Fourth Department reversed defendant’s conviction based on the trial court’s refusal to allow the defense a peremptory challenge.  Defense counsel had mistakenly crossed out the juror’s name and quickly let the court know about the mistake:


After several prospective jurors had been excused for cause, the court directed the attorneys to exercise their peremptory challenges to the first group of prospective jurors in the panel.  The prosecutor exercised several challenges, followed by defense counsel.  As the court began to indicate the number of challenges that remained for each side, defense counsel immediately asked if he could exercise a peremptory challenge to the prospective juror in question on appeal.  When the court said no, defense counsel indicated that he had “crossed [the prospective juror’s name] out by mistake.”  The court reiterated that it would not permit the challenge, indicating that it had warned the attorneys about adhering to the court’s procedures.


“Under these circumstances, ‘we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [his] challenge,’ ” and we thus conclude that the court’s refusal to permit the challenge was an abuse of discretion … .  Inasmuch as “the right to exercise a peremptory challenge against a specific prospective juror is a ‘substantial right’ . . . , reversal is mandated” … . People v Rosario-Boria, 1007, 4th Dept 10-4-13






Revocation of Pistol Permit (After Acquittal) Not

Supported by Evidence


The Fourth Department, in an Article 78 proceeding initiated in the appellate court, annulled the revocation of petitioner’s pistol permit.  The permit was suspended temporarily when petitioner was charged with menacing but was revoked after an acquittal:


We agree with petitioner that the determination is arbitrary and capricious, and constitutes an abuse of discretion inasmuch as the record from the hearing is devoid of any evidence upon which respondent could have based his determination … .  We further agree with petitioner that his due process rights were violated inasmuch as the record from the hearing does not demonstrate that he was afforded the opportunity to review the alleged documentation upon which respondent based his determination … .  We therefore annul the determination.  We note, however, that our determination does not preclude the commencement of a new revocation proceeding… . Matter of Curts v Randall, 890, 4th Dept 10-4-13






Error to Dismiss Failure-to-Mitigate-Damages

Affirmative Defense in Contract Dispute


In a contract dispute, the Second Department determined Supreme Court should not have dismissed the defendant-Everfoam’s affirmative defense alleging plaintiffs failed to mitigate damages, noting that the duty to mitigate arises from the common law and need not be expressly bargained for in the contract:


…[T]he Supreme Court erred in awarding summary judgment dismissing Everfoam's fourth affirmative defense alleging that the plaintiffs failed to mitigate damages, based on its determination that "no such duty exists within the parties' contract." To the contrary, the duty to mitigate damages arising from a breach of contract is a duty that arises from common law and, therefore, need not be expressly bargained for in a contract to be enforceable … . Accordingly, assuming liability, Everfoam should be entitled to limit damages, if any, if the plaintiffs failed to make "reasonable exertions to minimize the injury" … . Mack-Cali Realty LP v Everfoam Insulation Sys Ind, 2013 NY Slip Op 06348, 2nd Dept 10-2-13






Excessive Intervention by Trial Judge Required New Trial


Over a partial dissent, the Second Department granted defendant a new trial before a different justice in a medical malpractice case based upon the trial judge’s erroneous exclusion of evidence, excessive intervention in the trial, and an erroneous (“Noseworthy”) jury instruction. With respect to the judicial intervention, the Second Department wrote:


The defendant was … deprived of a fair trial by the court's excessive intrusion into the examination of witnesses, and by the nature and extent of its questioning and comments … . It is axiomatic that the trial court "has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary" … . Nonetheless, a trial court must be "mindful that its participation in the questioning of witnesses has the potential to influence the jury and, thus, when it intervenes to clarify testimony or elicit a responsive answer, it must be careful to do so in an evenhanded and temperate manner" … . Here, while the trial court had the authority to elicit and clarify the defense witnesses' testimony, the record shows that on repeated occasions, including those specifically discussed by our dissenting colleague, it did not do so in an evenhanded and temperate manner. The court conveyed an impression of incredulity with respect to the defense witnesses' opinions, as reflected by the record … . Moreover, the court's incredulity had an improper cumulative effect … . Nunez v New York City Health & Hosps Corp…, 2013 NY Slip Op 06350, 2nd Dept 10-2-13.




Excessive Intervention and Improper

Conduct by Trial Judge Required New Trial


In a medical malpractice case, the Second Department determined plaintiff was deprived of a fair trial by the trial judge’s excessive intervention and improper conduct:


"[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial" . A trial justice plays a "vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial," but that "power is one that should be exercised sparingly" … . Accordingly, a trial justice may not " so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'" … . 


A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff's counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should " at all times maintain an impartial attitude and exercise a high degree of patience and forebearance'" … . Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff's counsel, at all phases of the trial===and often times in the presence of the jury---unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff's counsel, and gave the plaintiff's counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants' counsel. Porcelli v Northern Westchester Hosp Ctr, 2013 NY Slip Op 06354, 2nd Dept 10-2-13.






Most of Police Internal Investigation Report

Deemed Immune from Disclosure


In determining that most of a police department’s internal investigation report need not be disclose pursuant to a Freedom of Information Law (FOIL) request, the Second Department wrote:


The Freedom of Information Law (Public Officers Law art. 6; hereinafter FOIL) was enacted “to promote open government and public accountability” and “imposes a broad duty on government to make its records available to the public” … . Under FOIL, government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law § 87(2), which permits an agency to deny access, inter alia, to records which “are specifically exempted from disclosure by state or federal statute” (Public Officers Law § 87[2][a]… ). One such statute exempting records from disclosure is Civil Rights Law § 50-a(1), which provides, in relevant part, that “[a]ll personnel records used to evaluate performance toward continued employment or promotion” of police officers “shall be considered confidential and not subject to inspection or review.” However, “when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer” … . Matter of Cook v Nassau County Police Dept, 2013 NY Slip Op 06364, 2nd Dept 10-2-13

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