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October Page II

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


Click on the Case Name to View Full Decision




Criteria for Setting Aside a Verdict As a Matter of Law and Setting Aside a Verdict As Against the Weight of the Evidence Explained


The Second Department determined Supreme Court should not have directed a verdict in favor of the plaintiff after a jury verdict in favor of the defendant.  The facts were such that the jury could have found fault on the part of the plaintiff and the defendant, but the jury could not have found the defendant was free from fault.  Therefore, the trial court should not have directed a verdict for the plaintiff, but rather should have found the verdict against the weight of the evidence and ordered a new trial.  The Second Department explained the different criteria for setting aside a verdict as a matter of law and setting aside a verdict as against the weight of the evidence:


CPLR 4404(a) provides, in relevant part, that: "[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence" (CPLR 4404[a]). The Court of Appeals has recognized that the setting aside of a jury verdict as a matter of law and the setting aside of a jury verdict as contrary to the weight of the evidence involve two inquiries and two different standards ... . For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, it must find that there is "simply no valid line of reasoning and permissible inferences which could possibly lead . . . to the conclusion reached by the jury on the basis of the evidence presented at trial" ... . However, "[w]hether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors" ... . " When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view'" ... . "A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence" ... . Thus, rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence ... . Where a court makes a finding that a jury verdict is not supported by sufficient evidence, it "leads to a directed verdict terminating the action without resubmission of the case to a jury" ... . Where a court finds that a jury verdict is against the weight of the evidence, it grants a new trial ... . Ramirez v Mezzacappa, 2014 NY Slip Op 06808, 2nd Dept 10-8-14





New York's Transactional Approach to Res Judicata Applies to Issues Which Could Have Been Raised in a Prior Proceeding on the Merits, Even Where Prior Proceeding Was Wrongly Decided


In an action concerning whether plaintiff owned an undivided half interest in property which had been encumbered by a mortgage without plaintiff's participation, the Second Department determined the complaint was properly dismissed under the doctrine of res judicata because the issues had not been raised in a prior proceeding (even though the issues may have been wrongly decided in that proceeding).  The court explained the relevant legal principles, including New York's transactional approach to res judicata:


Contrary to the plaintiff's contention, the Supreme Court properly determined that the doctrine of res judicata precluded the plaintiff from asserting her current claims ... . " Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation'" ... . Under New York's transactional approach to res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" ... . "The rationale for the doctrine is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again; allowing relitigation would undermine the interest of the community and the litigants in finality" ... . Indeed, "[t]he policy against relitigation of adjudicated disputes is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts" ... .


Here, the Supreme Court properly granted the ... defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that it was barred by the doctrine of res judicata. The ... defendants demonstrated their prima facie entitlement to judgment as a matter of law by presenting evidence that the plaintiff's claims against them arose from the same operative facts and concerned the same property as the claim she raised against the ... defendants in the 2007 action, which was decided on the merits. Moreover, the ... defendants demonstrated that all of the claims asserted against them in this action were raised or could have been raised in the 2007 action. In opposition, the plaintiff failed to raise a triable issue of fact ... . Myers v Myers, 2014 NY Slip Op 06805, 2nd Dept 10-8-14





Prosecution Failed to Prove the Requisite Intent and Materiality in a Perjury Case


In reversing defendant's (Hadid's) conviction for perjury, the Second Department determined there was insufficient evidence defendant testified with the requisite intent and there was insufficient evidence the allegedly perjurious statement was "material." The alleged perjury was testimony by the defendant at the trial of one Kargu. The decision illustrates the stringent proof requirement in a perjury case:


Viewing the evidence in the light most favorable to the prosecution ... , we find that it was legally insufficient to establish Hadid's guilt of perjury in the first degree beyond a reasonable doubt ... . As a matter of law, the evidence failed to establish that Hadid had made a false statement under oath. To prove falsity, the prosecution must show that the witness was intentionally, rather than mistakenly, testifying falsely ... . To determine intent, the court will look at whether the statement at issue related to a memorable fact, the significance of the event at the time it occurred, the line of inquiry of the examiner, and whether a fact was deliberately concealed if concealment is alleged ... . * * *


The People's also failed to establish beyond a reasonable doubt that Hadid's statements were material to the Kargu trial ... . " [T]he test of materiality is whether the false testimony was capable of influencing the tribunal on the issue before it'" ... .


Contrary to the prosecution's contention, neither Hadid's statements at trial nor his credibility were material to Kargu's guilt or nonguilt ... . People v Hadid, 2014 NY Slip Op 06842, 2nd Dept 10-8-14




Defendant Did Not Forfeit His Right to Counsel by Making Four Applications for Reassignment of Assigned Counsel/Evidence of Burglary and Criminal Mischief Insufficient--Possession of Stolen Items Not Enough


The Second Department reversed defendant's conviction, finding that defendant had not forfeited his right to counsel because he had made four applications for reassignment of assigned counsel.  The court also determined the possession of stolen items removed in time from the burglary, without more, was not enough to support the burglary and criminal mischief convictions.  With respect to the "forfeiture of the right to counsel," the court explained:


The record does not support a finding that the defendant forfeited the right to counsel. Where a criminal defendant moves for reassignment of counsel as a mere dilatory tactic, that application may properly be denied ... . However, a finding of a forfeiture of the right to counsel is an "extreme, last [ ] resort" ... . Here, the record does not show that the defendant engaged in any conduct warranting a forfeiture finding. Rather, the record shows that, at most, he engaged in dilatory conduct, refused to cooperate with his attorneys and was argumentative, and at one point "yelled" at one of his attorneys in an incident characterized by the Supreme Court as a "heated exchange." Further, it is undisputed that the defendant did not validly waive the right to counsel. Indeed, the record shows that he consistently sought the assistance of assigned counsel.


The defendant's conduct, as reflected by the record, did not support or justify the Supreme Court's ruling, which forced the defendant to proceed to trial without the benefit of counsel ... . People v Isaac, 2014 NY Slip Op 06844, 2nd Dept 10-8-14




Legal Underpinning of the "Fellow Officer" Rule Explained


The Second Department determined defendant's motion to suppress was properly denied.  The defendant's arrest was based upon a transmission to the arresting officers but the prosecution did not introduce any evidence of the identity of the transmitting officer. The court offered an in-depth explanation of the "fellow officer" rule:


"Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with' a fellow officer . . . in possession of information sufficient to constitute probable cause for the arrest" ... . Probable cause exists when "an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed" ... . At a suppression hearing, the prosecution has the burden of establishing that the officer who transmitted the information had probable cause ... .


The fellow officer rule is a "straightforward application" of the two-pronged Aguilar-Spinelli test ... , which New York courts use to assess whether hearsay information is sufficient to establish probable cause for a warrantless arrest or the issuance of a warrant ... . The Aguilar-Spinelli test first requires the suppression court to assess whether the information on which the police have acted is reliable ... . The second part of the Aguilar-Spinelli test evaluates whether the informant had an adequate "basis of knowledge" for the information supplied... . Under the fellow officer rule, "[i]nformation received from another police officer is presumptively reliable" ... . The People still, however, must satisfy the second prong of the Aguilar-Spinelli test: how the transmitting officer acquired that information.


Here, under the fellow officer rule, the arresting officers were entitled to presume that the information they received from an undercover officer was reliable. Moreover, under the circumstances of this buy and bust operation, it is clear that the transmitting officer, whether it was the ghost undercover officer or the primary undercover officer, had an adequate basis of knowledge for the information transmitted, either from direct participation in the transaction or observation of it. Contrary to the defendant's contention, the undercover officer who made the transmission was not required to delineate the defendant's exact role in the transaction in order to establish probable cause for his arrest ... . People v Oglesby, 2014 NY Slip Op 06845, 2nd Dept 10-8-14





Conviction for Which an Illegal Sentence Was Imposed Can Not Serve as the Basis for a Second-Felony-Offender Adjudication


The Second Department determined that a prior conviction could not serve as the basis of defendant's second-felony-offender adjudication.  The 1993 conviction was subject to an illegal sentence which was not remedied until after the commission of the instant offenses:


The defendant's adjudication as a second felony offender was improper. The predicate for this adjudication was a 1993 conviction for which, the parties agree, an illegal sentence was imposed. A lawful sentence on that conviction was not imposed until after the instant crimes were committed. The relevant statute provides, however, that for purposes of determining whether a prior conviction is a predicate felony conviction, the sentence upon such prior conviction "must have been imposed before commission of the present felony" (Penal Law § 70.06[1][b][ii]). Thus, the 1993 matter may not serve as a predicate felony conviction in the instant case (see Penal Law § 70.06[1][b][ii]...). We reach this determination notwithstanding the fact that the defendant did not move to set aside his sentence in the 1993 matter until after the sentence in the instant case was imposed, as "multiple offender status is defined by the plain statutory language, which courts are not free to disregard" at will ... . People v Esquiled, 2014 NY Slip Op 06839, 2nd Dept 10-8-14




Election Law Which Restricts Where Certain Candidates' Names May Appear on the Ballot (Election Law 7-104 (4) (c)) Declared Constitutional


The Third Department determined that Election Law 7-104 (4) (c) was not unconstitutional as applied to petitioners, candidates for state office nominated by the Stop Common Core Party:


Petitioners commenced this proceeding seeking a declaration that Election Law § 7-104 (4) (c) is unconstitutional as applied to them because it violates their rights to freedom of speech and association guaranteed by the 1st and 14th Amendments of the US Constitution. Although petitioners did not dispute that respondents complied with section 7-104 (4) (c), they asserted that strict enforcement of that provision creates a patch-worked and illogical ballot that promotes voter confusion, makes it more difficult for Stop Common Core Party supporters to locate petitioners, and impinges upon petitioners' right to associate and express themselves as a party slate of candidates who share common ideals. Petitioners further sought to compel respondents to place their names on the Stop Common Core Party line ... . * * *


[In overruling the line of cases relied upon by the petitioners, the] Court [of Appeals] ...  stated that the prior version of the statute — which is not meaningfully distinct from the present version before us (see Election Law former § 248) — "is clear and constitutional" ... . Addressing its prior cases ... which found a strict application of the statute to be unfair and prejudicial in cases similar to this one, the Court stated that "'[u]nfair and prejudicial' must mean something beyond detriment or inconvenience since the Legislature itself has said that fairness calls for the prohibition of a third column" to candidates nominated by independent bodies when those candidates already appear on the ballot as the nominees of two or more major parties (Matter of Battista v Power, 16 NY2d at 201). The Court clarified that "[t]he kind of unfairness and prejudice which would make the section unconstitutional as to a particular group must be of such character as to deprive that group of proper representation on the voting machine or otherwise make it practically impossible for the members of that group to vote as such" (id.).


In our view, Matter of Battista v Power (supra) is controlling, particularly after the Court of Appeals expressly indicated that it had overruled the last of the prior, inconsistent line of cases .... Under Battista, Election Law § 7-104 (4) (c) is not unconstitutional as applied to petitioners---their names appear twice on the ballot in separate major party lines and the ballot further designates them as candidates of the Stop Common Core Party, albeit in a less prominent fashion than they seek ... . Matter of Cahill v Kellner, 2014 NY Slip Op 06886, 3rd Dept 10-10-14






Acknowledgment of Paternity by Mother's Husband Did Not Preclude Biological Father's Petition to Be Declared the Father of the Child


The Second Department reversed Family Court, finding that the mother's husband's acknowledgment of paternity was not a bar to the biological father's petition to be declared the father of the child:


The subject child was born to the mother on July 11, 2007. The mother was unmarried at the time. On February 17, 2009, the mother married nonparty Gaston R. In or around September 2011, the petitioner filed the instant petition seeking to be declared the father of the subject child. An existing acknowledgment of paternity dated February 20, 2009, named Gaston R., not the petitioner, as the father of the subject child. The mother and Gaston R. do not dispute that the petitioner is the biological father of the subject child. The Family Court dismissed the paternity petition without a hearing on the basis that the petitioner could not establish fraud as required by Family Court Act § 516 to vacate an acknowledgment of paternity. We reverse.


The Family Court erred in treating the petition as one to vacate the acknowledgment of paternity. The petition sought to declare the petitioner the father of the child (see Family Ct Act § 524). A prior acknowledgment of paternity made in accordance with Family Court Act § 516-a does not serve as an insuperable bar to a claim of paternity by one who is a stranger to the acknowledgment ... . Matter of Thomas T, 2014 NY Slip Op 06834, 2nd Dept 10-8-14





Threat and Insults Insufficient to Establish Appellant Was Initial Aggressor


The Second Department determined that the findings that the juvenile appellant had committed acts which would have constituted assault and menacing had the appellant been an adult were against the weight of the evidence. The court determined the appellant was not the initial aggressor and the appellant had acted in self defense.  The court explained that insults can not be the basis of an "initial aggressor" finding:


The defense of justification is available where, inter alia, the actor is acting in self-defense and the actor was not the initial aggressor ... . An actor is not the initial aggressor where his or her conduct consists of "mere insults as opposed to threats" ... . Where this defense is raised, the presentment agency must disprove it beyond a reasonable doubt (see Penal Law §§ 25.00, 35.00; Family Ct Act § 303.3).


Here, although the evidence established that the appellant verbally threatened to "slap the glasses off [the complainant's] face," the complainant testified that the appellant made this threat before the situation degenerated into a physical fight. Moreover, this type of threat, in the context in which it was uttered, did not constitute the type of threat that would support the conclusion that the appellant was the initial aggressor ... . Similarly, although the appellant admitted to insulting the complainant, those insults, considered either alone or in connection with the above-described threat, were not sufficient to make the appellant the initial aggressor in the altercation ... .  Matter of Mondy E, 2014 NY Slip Op 06821, 2nd Dept 10-8-14





The Language of the NYC Rent Control Law, Unlike the Language of the NYC Rent Stabilization Law, Does Not Allow "Luxury Deregulation" After the Expiration of J-51 Tax Benefits


The First Department, in a full-fledged opinion by Justice Sweeny, determined that the relevant provision of the NYC Rent and Rehabilitation Act (Rent Control Law or RCL) could not be interpreted to allow "luxury deregulation" of a rent-controlled apartment upon the expiration of "J-51" tax benefits.  "Luxury deregulation" refers to the removal of rent controls where the tenant can afford to pay market rates. The opinion focused upon the wording of the Rent Stabilization Law (RSL) versus the wording of the Rent Control Law (RCL) .  The RSL specifically allows the owner of an apartment to apply for luxury deregulation upon the expiration of the J-51 tax benefits, while the RCL (the controlling regulation here) does not.  The opinion includes a discussion of court-review of an administrative agency's interpretation of a statute where specialized knowledge is not involved, and statutory-interpretation criteria:


At the outset, we note that the question before us turns purely on statutory interpretation. As such, we need not defer to the agency's interpretation of the statutes in question, as we are not called upon "to interpret a statute where specialized knowledge and understanding of underlying operational practices or . . . an evaluation of factual data and inferences to be drawn therefrom' is at stake" ... . * * *


The owner argues that the rationale of [the RSL] should also apply to apartments subject to rent control, because, inter alia, to hold otherwise would be inconsistent with the purpose of the luxury deregulation law, which attempted to "restore some rationality to a system which provides the bulk of its benefits to high income tenants" ... . We are not unmindful that the legislative history indicates a preference not to have people who can easily afford market value rental property inhabit rent-regulated housing. However, this history does not offer sufficient evidence to alter the unambiguous language of Administrative Code § 26-403(e)(2)(j). To do so would require us to import new language into the RCL and "give it a meaning not otherwise found therein" ... . Indeed, "where the language of a statute is clear, there is little room to add to or take away from that meaning'" ... . If the application of such long-established principles of statutory construction produces "an undesirable result, the problem is one to be addressed by the Legislature" ... . Matter of RAM I LLC v NYS Div of Hous & Community Renewal, 2014 NY Slip Op 06784, 1st Dept 10-7-14

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