First Department

Bronx ADA Plays Dumb--Who Is That Brady Guy, Anyway?

Gavel2 People v Garcia, 2007 NY Slip Op 10467 is an unusual case.  Not because of the ADAs actions--flagrantly violating Brady--but because the violation was actually discovered and the First Department came down so hard on the ADA for failing to provide Brady material.  Of particular note is the Court's harsh language when chastising the ADA's actions.

The decision and background of the case are explained in this New York Lawyer article:

The Appellate Division, First Department, in People v. Garcia, 1085, 1086, last week ruled unanimously that Pedro Garcia and his wife, Betzayda Melendez, must be given a new trial on charges that they kidnapped a 13-year-old girl and forced her to board a flight to Puerto Rico...

The First Department agreed with Justice Barrett that "the prosecution wilfully suppressed evidence, in their possession, from flight attendants that contradicted the complainant's claim that she created a disturbance and vociferously protested to the attendants that she was being taken against her will by defendant Melendez on a flight to Puerto Rico."

What I find to be so interesting about this case is the section of the decision where the Court provided an excellent summary of the People's obligations under Brady and then offered up a verbal smack down of the ADA's actions and their subsequent lame attempt to justify the Brady violation on appeal:

(I)t is irrelevant whether defense counsel could have discovered or should have known that the flight attendants would contradict the complainant's account of the flight. The prosecution's constitutional and ethical obligations are independent obligations. The only relevant point here is that the prosecution did know of and did not disclose this significant impeachment evidence.

It is disquieting that the People's brief refers to this failure to disclose as "an arguable lapse of preferred practice." This was a flagrant violation by the prosecutor of his constitutional and ethical obligations...

Disquieting, indeed.

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Gov. Spitzer Appoints Judge Lippman As Presiding Justice of 1st Department

Lippman2As reported in this Buffalo Business First article, yesterday Governor Spitzer appointed Chief Administrative Judge Jonathan Lippman to serve as Presiding Justice for the Appellate Division, First Department:

Lippman is the longest serving chief administrative judge in state history. He was appointed to that position in 1996 while serving as judge on the Court of Claims, and has continued serving as such since then.

In 2005, he was elected as a Supreme Court justice for the 9th Judicial District and was then appointed as an associate justice for the Appellate Term for the 9th and 10th Judicial Districts.

A New York City native, Lippman received both his undergraduate and law degrees from New York University.

First Department Comedic Break

Here's a classic and highly unusual case originating right here within the confines of our fine state. In Srambovsky v.  Ackley, 169 A.D.2d 254, 572 N.Y.S.2d 672 (1st Dept. 1989), the plaintiff sought recission of a real estate contract for the purchase of a home based upon allegations that the house was alleged to be haunted.  The First Department concluded that the trial court improperly dismissed this cause of action. 

A number of the more amusing parts of this case are set forth below, including a reference to the movie "Ghost Busters":

The unusual facts of this case, as disclosed by the record, clearly warrant a grant of equitable relief to the buyer who, as a resident of New York City, cannot be expected to have any familiarity with the folklore of the Village of Nyack. Not being a "local," plaintiff could not readily learn that the home he had contracted to purchase is haunted. Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication ("Readers' Digest") and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted. More to the point, however, no divination is required to conclude that it is defendant's promotional efforts in publicizing her close encounters with these spirits which fostered the home's reputation in the community. In 1989, the house was included in a five-home walking tour of Nyack and described in a November 27th newspaper article as "a riverfront Victorian (with ghost)." The impact of the reputation thus created goes to the very essence of the bargain between the parties, greatly impairing both the value of the property and its potential for resale.

While I agree with Supreme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his downpayment.

"Pity me not but lend thy serious hearing to what I shall unfold" (William Shakespeare, Hamlet, Act I, Scene V [Ghost] ).    From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: "Who you gonna' call?" as the title song to the movie "Ghostbusters" asks...In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest...

Finally, if the language of the contract is to be construed as broadly as defendant urges to encompass the presence of poltergeists in the house, it cannot be said that she has delivered the premises "vacant" in accordance with her obligation under the provisions of the contract rider.

Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

First Department Reverses Default Judgment

The First Department considered an interesting procedural issue in Carrillo v New York City Tr. Auth., 2007 NY Slip Op 03060.  At issue was whether the trial court properly denied the plaintiff's motion to vacate the trial court's order, which granted the defendant's motion for summary judgment and dismissed the complaint in its entirety.

In this case, the plaintiff alleged that she sustained personal injury while traveling on a public bus.  After disclosure had been completed and a note of issue had been filed by the plaintiff, the defendant sought and obtained leave to file a late motion for summary judgment.  The plaintiff submitted responsive papers, but when the plaintiff's counsel failed to appear at motion argument, the trial court granted the motion for summary judgment based upon the plaintiff's default for failing to appear at motion argument.

The plaintiff's counsel moved to vacate the Order and submitted an attorney affirmation alleging that he'd been told by the court clerk that appearances on the return date of the motion were not required.  The defendant opposed the motion on the grounds that the motion was made only 2 days before the one-year period in which to make the motion expired and because a reasonable excuse for failure to appear had not been made.  The trial court agreed with the defendant on both issues. 

Fortunately for the plaintiff, the First Department concluded otherwise:

Supreme Court found plaintiff did not show a reasonable cause for the delay in making the motion to vacate and denied the motion as "not being timely made." This was error. Plaintiff had one year from service of notice of entry of the order granting summary judgment on default to make the motion to vacate (CPLR 5015 [a][1]). Given that plaintiff was served with notice of entry of the order on October 12, 2004 and the motion to vacate was filed on October 10, 2005, the motion was timely. Plaintiff's attorney presented a reasonable excuse for not appearing on the return date of the motion in affirming that he was informed by a court clerk that his appearance was not required. Such a scenario does not, by itself, amount to a pattern of neglect or willfulness warranting a default...

I think that the First Department's decision was correct and was somewhat surprised by the trial court's determinations in this case.  I'd hazard to guess that the trial court was more than just a bit biased against either plaintiffs in general, or the plaintiff's particular counsel in this case.  This supposition is further buttressed by the trial court's decision to allow the defense leave to file a late motion for summary judgment and its subsequent and extremely harsh rulings against the plaintiff.

But, I could be completely off base on this one.  It wouldn't be the first time.

Strip Searches For Misdemeanors and Testimonial Hearsay

I was reviewing recent decisions from the Appellate Divisions and two short criminal decisions caught my eye.

The first is a decision from the Third Department, People v Banks, 2007 NY Slip Op 01636.  What interested me about this decision was the part of the decision that set forth the applicable law regarding warrantless strip searches for those in custody on a misdemeanor charge.  The Court stated that:

(D)efendant argues that the strip search was conducted in violation of his constitutional rights. In the absence of a reasonable or founded suspicion that a person in custody is concealing weapons or contraband, a person in custody on a misdemeanor or other minor offense has a constitutional right to be free from warrantless strip searches (see People v Kelley, 306 AD2d 699, 700 [2003], lv denied 1 NY3d 598 [2004]; People v Jennings, 297 AD2d 644 [2002]). At the Mapp hearing, one of the Amsterdam police officers testified regarding a policy of conducting strip searches of every arrestee remanded to the local correctional facility. Notwithstanding the unconstitutionality of such a policy (see Weber v Dell, 804 F2d 796, 802 [1986], cert denied sub nom. County of Monroe v Weber, 43 US 1020 [1987]), here, not only were the Amsterdam police advised by the Schenectady police of their suspicion that defendant was secreting something in his pants, the Amsterdam police observed defendant, while in their patrol car, attempting to reach in his pants, causing the officer to conclude that the information from the Schenectady police was accurate and that defendant was attempting to remove something and secrete it in the police car. We conclude that the Amsterdam police properly formed a reasonable suspicion that defendant had contraband on his person and that the strip search was therefore reasonable.

I think it's extremely important have this information easily and readily accessible via internet search, since I believe many criminal defense attorneys are unaware of to the circumstances under which strip searches can be legally conducted.  And, in my experience, many jails routinely conduct strip searches on all of those taken into custody regardless of the charges pending against an inmate.   Hopefully, this case will be of assistance to other lawyers who either read my blog on a regular basis or who stumble upon this post as a result of an internet search.

People v Pabon(Adres) 2007 NYSlipOp 50326(U), is a short, but informative decision from the First Department.  In Pabon, the Court considered the issue of whether non-testifying coparticipant's response to a police officer's request, which consisted of handing over what the defendant had given her, was testimonial in nature.  The Court concluded that it was and ordered a new trial:

As the District Attorney candidly concedes, defendant's conviction must be reversed based upon the improper admission of hearsay evidence violating defendant's constitutional right of confrontation (see Crawford v Washington, 541 US 36 [2004]). The non-testifying coparticipant's response in handing over contraband after being asked by police to produce what defendant had given her was testimonial in nature, since the attendant circumstances objectively indicated that the primary purpose of the police interrogation was not to facilitate police assistance in the face of an ongoing emergency but "to establish or prove past events potentially relevant to later criminal prosecution." (Davis v Washington, 126 S.Ct. 2266 [2006]; see and compare People v Bradley, ___NY3d___, 2006 NY Slip Op 09501, filed Dec. 19, 2006). Thus, admission of this critical evidence as to the coparticipant's demonstrative response constituted a violation of defendant's Sixth Amendment confrontation rights, a violation which, on this record, cannot be considered harmless beyond a reasonable doubt...

Justification Defense--Knowledge of Ability to Retreat a Required Element

A recent Third Department case, People v Soriano, 2007 NY Slip Op 00445, is yet another example of how important it is on appeal to carefully scrutinize a trial court's jury charge on the issue of justification.  I learned this lesson early on in my career when I was successful on appeal in a similar case, People v. Sierra, 231 A.D.2d 907, 647 N.Y.S.2d 891 (4th Dep't 1996).

In this case, the defendant was charged with second-degree murder and first-degree manslaughter and alleged that when he killed the victim he was defending himself and his brother, and thus his actions were justified.  The jury convicted him of manslaughter, but acquitted him of murder.

The Third Department first set forth the standard jury charge for this defense and explained the prosecution's burden of proof:

"The defendant would not be justified if he/she knew that he/she could with complete safety to himself/herself and others avoid the necessity of using deadly physical force by retreating" (CJI2d[NY] Justification: Use of Deadly Force in Defense of a Person [emphasis added]). Thus, to defeat a justification defense in a prosecution for the use of deadly physical force, the People must prove beyond a reasonable doubt, not only that it was objectively possible for the defendant to retreat "with complete personal safety," but also that the defendant was subjectively aware that it was possible to do so.

In this case, the trial court's instruction on the defense of justification was as follows:

(T)he "defense of justification does not apply...if a defendant uses deadly physical force, knowing that with complete safety to himself and others, he can avoid the necessity of using such force by retreating." That part of the charge was correct. The court did not let the matter rest there, however, but went on to restate the standard as follows: "Once again, the People have the burden of establishing, beyond a reasonable doubt, that under the circumstances, [defendant] could have retreated with complete safety to himself and to Kenny Santos"...

The Third Department held that the trial court's instruction improperly misstated the law "by eliminating the subjective component of the test, and omitting from the prosecution's case knowledge as an essential element of proof..."

Accordingly, the Court reversed the judgment of conviction in the interests of justice, even though the defendant failed to object at trial.  In my mind, that's the most unusual aspect of this decision.  A reversal in the absence of an objection to the jury charge is a rarity indeed.

Although I've not discussed it in this post, there is an interesting evidentiary issue regarding rebuttal testimony that is addressed at the end of the decision that might also be worth a quick read. 

Is Labor Law 240(1) Liability Established By Use of Doubled Planks Used As a Bridge Across a Trench?

In Miraglia v H & L Holding Corp., 2007 NY Slip Op 00093, the defendant employer alleged that the plaintiff was a recalcitrant worker since he walked on a plank over a trench rather than using a ladder.  The First Department rejected that defense since the employer testified at trial  "that workers were permitted to walk on planks across a trench at the worksite, provided they doubled the planks."

The Court also stated held that even the use of doubled-up planking was insufficient protection and violated Labor Law s. 240(1):

(P)laintiff's expert offered unchallenged testimony that even doubled-up planking would not have provided adequate protection because the planks were unsecured and subject to movement. Since the planking was insufficient to protect plaintiff from the elevation-related hazard that caused his harm, liability pursuant to Labor Law § 240(1) was established; plaintiff was not, under any view of the evidence, the sole proximate cause of his injuries...At most, plaintiff's failure to double the planks would constitute negligence. However, the doctrine of comparative negligence is not available to diminish a defendant's liability under Labor Law § 240(1).  (Internal citations omitted).

Following trial, the jury awarded the 45-year-old plaintiff, who was impaled by a steel bar from the scrotum to L2 on his spinal cord, resulting in paraplegia and associated complications, $5 million for past pain and suffering, $10 million for future pain and suffering over 35 years, and $8,295,000 for future medical expenses.  However, the Court held that the large award for future pain and suffering was not supported by the evidence, and ordered a new trial on that issue unless the plaintiff agreed to accept a reduced award for future pain and suffering in the amount of $5,000,000.  The Court also reduced the award for future medical expenses to $8,056,222, due to an error in calculating that figure.

Wow.  Talk about a large monetary award! I bet Upstate lawyers reading this summary are drooling.  Verdicts like that are practically unheard of around here.

First Department to Unhappy Client--Nice Try, But Your Lawyer Still Gets 1/3

In Friedman v Park Cake, Inc., 2006 NY Slip Op 08171, a disgruntled client attempted to avoid compensating his attorney after his personal injury lawsuit settled for $90,000, alleging that his attorney failed to advise him of a medical lien.  He argued that the alleged oversight was legal misconduct and thus grounds for discharge of counsel.

In reaching its decision, the First Department first set forth the applicable law regarding termination of legal counsel:

It is well settled that a client may terminate his relationship with an attorney at any time, with or without cause...Where the discharge is for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement... Ordinarily, conflicting claims would necessitate a hearing to determine whether an outgoing attorney was discharged with or without cause.  (Internal citations and quotations omitted.)

The Court noted that the client did not seek to terminate his attorney "until after the attorney had already completed his services and had obtained a settlement that was even more favorable than the trial court anticipated" and that the retainer agreement and the firm's "General Instructions to Our Client's" both discussed the client's responsibility for liens and the any lines would be deducted from any recovery.  The Court then held that while it would have been advisable for the attorney to have discussed specific liens with the client, the failure to do so did not constitute grounds to deprive his attorney of his fee.

And how.

1st Department Considers 9/11 Notice of Claim Issue

I always find cases involving late Notice of Claim issues to be of particular interest given the serious ramifications presented by an untimely Notice of Claim.  And, the First Department case, Matter of Goffredo v City of New York, 2006 NY Slip Op 07196, is all the more interesting since it involves allegations of injuries sustained by the petitioner as a result of exposure to toxins while working at the World Trade Center site between September 11, 2001 and June of 2002. 

And, it's jam-packed full of interesting holdings regarding a multitude of procedural issues, not all of which will be included in this post.  So, you may very well wish to read this opinion in its entirety.

In this case, the petitioner's symptoms first appeared in December 2001 and he was eventually diagnosed with Chronic Obstructive Pulmonary Disease on February 27, 2003.  He sought to serve a late Notice of Claim on December 23, 2003 via an un-notarized affidavit, although no objection was raised at the time regarding the fact that the affidavit was not notarized.  Nevertheless, the trial court denied (without prejudice to renew) the motion for leave to serve a late Notice of Claim on the grounds that the affidavit was not notarized. 

The petitioner then made a motion to renew on or about June 15, 2003 and correctly filed the motion papers that time around.  The trial court again denied the motion, this time on the grounds that relief was being sought after the one year and ninety day statute of limitations had expired.

The First Department stated that the trial correct had improperly denied the first application, since an objection to the un-notarized affidavit had not been made, but concluded that the trial court was correct in denying the motion for leave to serve a late Notice of Claim since the applicable statute of limitations had expired:

General Municipal Law § 50-e(5) provides, in relevant part, that: "Upon application, the court, in its discretion, may extend the time to serve a notice of claim . . . . The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation [i.e., one year and ninety days]." Thus, once the statute of limitations has expired, the court is without discretion to entertain an application for leave to file a late notice of claim...

Where, as here, the claimed injury results from exposure to a harmful substance, the action accrues upon discovery of the manifestations or symptoms of the latent disease that the harmful substance produced... The diagnosis of petitioner's illness occurred on February 27, 2003. However, petitioner's medical records demonstrate that the symptoms manifested themselves on or about December 19, 2001. Since petitioner commenced the initial proceeding on or about December 23, 2003, approximately two years after his claim accrued, his initial petition was untimely and subject to dismissal.  (Internal citations and quotations omitted.)

The Court then went on to consider another interesting procedural question:  whether a motion to renew relates back to the date when the original motion was filed.  The dissent contended that the petitioner's original application was timely and thus, the renewed application was timely as well.  The majority dismissed that argument, refusing to adopt the contrary holding a Second Department case directly on point (Matter of Mazzilli v City of New York (115 AD2d 604 [2d Dept 1985])), and stated that:

Even assuming that petitioner's initial application to file a late notice of claim was timely, the renewed application was not. Once Supreme Court denied the initial application, petitioner's remedy was to appeal from that order. That course of action would have preserved the timely application... Petitioner's decision to renew the application rather than appeal cannot easily be criticized in light of Supreme Court's denial without prejudice to renew. The more prudent course, however, would have been both to appeal and renew the application. In any event, our sympathy for the position petitioner was placed in by Supreme Court does not provide a basis for concluding that the renewed application should have been granted.

An untimely renewal motion does not relate back to the date when the originally timely motion was made... As we have noted, acceptance of the "relation-back" doctrine in this regard is inappropriate because the statute of limitations would have no practical effect for it would impose no time constraint on seeking renewal.  (Internal citations and quotations omitted.)

A number of other interesting procedural arguments were raised in this decision and I highly recommend that you read it in its entirety.  I find the dissent's argument to be quite compelling in many respects.  Anyone care to convince me that the majority got it right?