Sui Generis--a New York law blog

Statute of Limitations and Emotional Distress Claims

Statute of limitations cases always interest me, since they present unique issues, and Schultes v Kane 2008 NY Slip Op 03271 is just such a case.

Schultes offers an unusual factual scenario, and clarity on the issue of when the statute of limitations begins to run on emotional distress claims.

In this case, 30 years after the plaintiff and defendant divorced, the defendant, without the plaintiff's knowledge, had their children's bodies disinterred from a burial plot owned jointly by the parties and had the bodies placed elsewhere.

The plaintiff learned of this fact a few years later in 2005, and shortly thereafter filed a lawsuit alleging, inter alia, intentional and negligent infliction of emotional distress.  The husband alleged that her claims were precluded by the statute of limitations.

The Third Department disagreed:

The statutes of limitations do not bar plaintiff's causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress. "[A]s a general proposition, a tort cause of action cannot accrue until an injury is sustained. That, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual"...Because extreme emotional distress is an element of each of these causes of action, and plaintiff could not truthfully allege all of the elements until she suffered this element of injury, these causes of action did not accrue until she suffered distress as a result of learning that her children's bodies had been disinterred...As plaintiff commenced the action within two months after these causes of action accrued, the statutes of limitations had not expired...

Sounds about right to me. 

Third Department Holds Miranda Violation Warrants New Trial

In People v VanPatten, 2007 NY Slip Op 10408, the defendant was convicted after jury trial of Making a Terrroristic Threat in violation of Penal Law 240.20.  The defendant, while in custody on a parole violation, was accused of writing a letter to the Madison County District Attorney threatening the lives of the DA and his family unless he stopped prosecuting crimes violating Article 49 of the Penal Law.  The only person being prosecuted pursuant to that Article at the time the letter was sent was the defendant's biological father.

The defendant, who was incarcerated at the time, allegedly confessed to writing the threatening letter when speaking with a police investigator.  The confession occurred after the investigator informed Mr. VanPatten of the lengthy list of questions he intended to ask regarding the letter.  Following the initial "spontaneous" confession, the investigator advised him of his Miranda rights and he confessed again.

The Third Department held the trial court should have suppressed the entire confession:

When "the circumstances of the detention and interrogation of a prison inmate . . . entail added constraint that would lead a prison inmate reasonably to believe that there has been a restriction on that person's freedom over and above that of ordinary confinement in a correctional facility, Miranda warnings are necessary" (People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US 1090 [1994]; see People v Ward, 241 AD2d 767, 768 [1997], lv denied 91 NY2d 837 [1997]). Here, the interrogation of [*3]defendant at the detention facility which took place in a classroom with correction officers standing outside the door while defendant was not permitted to leave on his own was custodial in nature...In our view, Nell's explanation to defendant regarding why he wanted to speak with defendant was the functional equivalent of interrogation and, thus, County Court's determination that the statement was spontaneous is not supported by the record (see People v Vaughn, 275 AD2d 484, 487 [2000], lv denied 96 NY2d 788 [2001])...The entire interview took place over the course of approximately 30 minutes in a single location, without any break in questioning, and was, as Nell testified, "just [*4]one continuous process." Thus, defendant's warned statements were obtained as part of a "single continuous chain of events" and must also be suppressed.

What confounds me about this case is that the cops didn't play by the book given the strength of the evidence against the defendant.

The threatening letter "included defendant's full name, prison identification number and the address of the detention facility where defendant was held on unrelated parole violation charges", "fingerprints found on the letter were traceable to defendant" and the defendant's father was the only person currently facing charges for the crime mentioned in the letter.

Seems like a slam dunk even without the confession.  Now they're back to square one.  That'll learn 'em.

To Err Is Homicide

This week's Legal Currents column, which is published in The Daily Record, is entitled "To Err Is Homicide"  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

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Too Err is Homicide

The New York Court of Appeals recently granted leave to appeal in the matter of People v. Cabrera, 40 AD3d 1139, 835 NYS2d 747 (3d Dept. 2007).

In this case, a 17-year-old boy who possessed a junior driver’s license was sentenced to one and one-third to four years in state prison for doing what inexperienced teenage drivers have done since the advent of motor vehicles — exercising poor judgment while driving too fast.

The facts in this case are decidedly tragic. On a clear, dry afternoon in June 2004, the defendant, Brett Cabrera was driving an SUV in Sullivan County on Sackett Lake Road with four teenage passengers when he lost control. It is estimated he was traveling at about 70 miles per hour in a 55-mile-perhour zone and failed to slow down prior to negotiating a curve for which the recommended speed limit was 40 miles per hour.

As Cabrera attempted to navigate the curve, his vehicle skidded off the roadway and into a telephone pole. Three of his passengers were killed and the other suffered a fractured spine. None were wearing seatbelts. Cabrera was not under the influence of alcohol or drugs at the time of the accident.

Based on the facts, it would be difficult to argue Cabrera’s negligence did not cause the heartbreaking deaths of his young friends. He made a terrible miscalculation, which yielded disastrous results. Without a doubt, his civil liability would not be difficult to prove in court.

Civil liability does not necessarily amount to criminal liability, however. The vast majority of errors in judgment simply do not rise to the level of culpable conduct required for a criminal conviction.

At issue in Cabrera is whether Cabrera’s conduct was criminal. The Sullivan County District Attorney’s Office, a Sullivan County jury and the Appellate Division, Third Department each concluded that it was. He was convicted of three counts of criminally negligent homicide, assault in the third degree, reckless driving and a number of traffic infractions.

In upholding the jury’s verdict, the Third Department acknowledged the Court of Appeal’s determination that excessive speed alone cannot form the basis for a conviction based on a showing of recklessness or culpable negligence. The court determined, nevertheless, that the verdict was further supported by the convictions for the traffic violations, which included failure to keep right, driving left of a yellow line and violations of his junior license restrictions (namely that he failed to ensure no more than two passengers were under the age of 21 and that all passengers were wearing seat belts).

Justice Mugglin, writing for the dissent, pointed out the inconsistencies inherent in the majority’s decision: “(I)t should be observed that reckless driving, failure to keep right, crossing the double yellow line and speeding convictions all emanate from defendant having operated the vehicle at an excessive speed. Moreover, one questions, under the circumstances presented herein, how defendant could be criminally negligent by failing to perceive his conduct was dangerous while simultaneously driving recklessly because he perceived his conduct to be dangerous, yet ignored the danger.”

I only hope the Court of Appeals finds the dissent’s rationale to be convincing. Otherwise, I fear that in the future any number of graduating high school classes will include at least one convicted felon, guilty of throwing caution to the wind and naively engaging in the recklessness and daring of youth so familiar to those of us who once were young.

Third Department on Admissibility of Subsequent Accidents

In Petrilli v Federated Dept. Stores, Inc., 2007 NY Slip Op 04389, the plaintiff was seriously injured after slipping and falling on clean, dry tiles located at the entrance of a department store owned by the defendants. 

Following a trial that resulted in a substantial verdict for the plaintiff, the defendant appealed and alleged, in part, that the trial court improperly allowed testimony regarding subsequent similar accidents. The defendant alleged that the proof of subsequent similar accidents is admissible only in design defect cases.

In this case, the plaintiff's theory of negligence was that he fell not because the tiles were wet or damaged, but rather because the tiles were inherently slippery.

The Third Department held that because the plaintiff was able to prove through his expert witness that the tile was negligently  placed at the entrance of the store, the trial court's determination was correct:

Although design defect cases present a classic situation where both prior and subsequent accidents are potentially relevant to establish that a dangerous condition existed, it is possible, as here, for a plaintiff to allege that a defendant used a product in such a manner as to create a permanent, or inherent, dangerous condition, without alleging any defect in the product itself. Here, through the use of expert testimony, plaintiff established that the product the tile was not defective, but was being negligently misused because it was an inappropriate choice of tile for the entrance to a store... Under such circumstances, records of subsequent accidents are relevant to establish whether the condition created by defendants was unreasonably unsafe...

Sounds about right to me, since It seems to me that in a sense, the defendant's alleged negligence--improperly using a certain type of tile in an entranceway--is actually a type of a design defect, at least as that term is commonly understood.  In other words, the entranceway was defectively designed because of the negligent decision to install those particular tiles.  And, evidence of subsequent falls is therefore relevant since it constitutes additional evidence that the decision to install those particular tiles was negligent and likely caused others to slip as well.

Third Department Considers Whether Qualified Immunity Shielded Defendants

Colao v Mills, 2007 NY Slip Op 03230, is a Third Department case wherein the plaintiff commenced a 1983 action alleging that the defendant sheriffs unlawfully searched and seized his home and property in violation of the 4th Amendment. 

The defendants responded to a 911 call from the plaintiff's girlfriend on the date in question.  She indicated that  the plaintiff had weapons and alcohol in his residence and that he was chasing her and wanted to kill her. She requested assistance in entering the plaintiff's home and retrieving her belongings.  When the deputies arrived, she was no longer there.  There was clearly evidence of a struggle, and the plaintiff alleged that his girlfriend had run away up the driveway.

Up to 5 officers remained on his property for several hours while they searched for his girlfriend and used his telephone a number of times.  There was some dispute as to whether he consented to allow them to search his home.  His girlfriend was located alive the next day.  He subsequently brought this action.

At issue was whether the defendants were entitled to qualified immunity thus shielding them from liability for their actions on the evening in question.   In reaching its determination, the Court first explained the applicable legal standards:

Government officials performing discretionary functions are entitled to qualified immunity, thereby shielding them from civil liability, as long as their actions did not violate the plaintiff's clearly established legal rights; it must be objectively reasonable for the defendants to have believed that their conduct as related to the plaintiff was lawful under the circumstances...The two parts of this inquiry are whether plaintiff suffered a constitutional violation at the hands of defendants and, if so, whether the constitutional right was clearly established at the time so that any reasonable officer would clearly recognize that his or her conduct was unlawful in that situation...Immunity should ordinarily be determined by the court as a matter of law early in the case.  (Internal citations omitted).

The Court then considered whether the exigent circumstances exception to the 4th Amendment applied to the defendants' actions.  The Court concluded that it was applicable in this case:

It was objectively reasonable for police officers possessing this information to believe that Bergman could be inside plaintiff's house, she could be injured and they needed to find her quickly. Under the circumstances, defendants were justified in entering plaintiff's home and searching for Bergman...

The Court then stated that it was unable to determine as a matter of law whether the defendants exceeded the scope of their authority by remaining on the property for several hours, but concluded that qualified immunity protected them nevertheless since "even assuming that defendants exceeded the scope of the emergency and thus violated plaintiff's constitutional rights by remaining on his property and answering his phone, a rational jury could not find that defendants' judgment in this regard "was so flawed that no reasonable officer would have made a similar choice..."

Under the circumstances of this case, I'm inclined to agree with the Court.  Given the evidence of a struggle, had the officers simply taken the plaintiff's word as to what had happened without investigating further, they'd have been in awfully deep the next day had she turned up severely injured, or even dead.  In my opinion, the deputies' actions were reasonable under the circumstances.

Was the Sixth Amendment Violated Where Court Failed to Relieve Assigned Counsel and Substitute Pro Bono Attorney?

In People v Mack, 2007 NY Slip Op 02824, the defendant was initially assigned counsel for pending felony murder in the second degree and robbery in the first degree.  On May 23, 2003, the defendant entered a guilty plea while still represented by the Public Defender's Office.  Compentency exams were then ordered and a competency hearing was scheduled for December 11, 2003.

However, on October 10, 2003, before the competency exam had been ordered, the defendant executed a Consent to Change Attorney, requesting that his assigned appellate counsel, who was taking on the case on pro bono, be substituted as counsel of record.  A Notice of Appearance was filed with the trial court by the defendant's chosen attorney that same day. 

Nevertheless, the trial court judge did not allow the defendant  to change counsel until May 6, 2004, nearly 6 months later, after he'd been declared competent to proceed.  In the interim, his chosen attorney was present at subsequent proceedings and provided assistance to his assigned counsel. 

Shortly after she was substituted, his new counsel moved to vacate his plea, which the trial court denied prior to imposing sentence.

The Third Department concluded that the defendant was denied his Sixth Amendment right to counsel of his choosing:

Defendants have the right to choose who will represent them as long as they can afford to hire the attorney or the attorney is willing to represent them pro bono, provided the attorney is qualified and able to provide conflict-free representation...

Here, defendant signed a change of attorney form in October 2003 and his retained attorney simultaneously filed a notice of appearance, putting County Court on notice that he no longer required or wanted representation by the previously assigned counsel. No concern was raised on the record regarding retained counsel's qualifications, willingness to undertake defendant's representation, or ability to provide conflict-free representation...

(T)he fact that his competency had been called into question did not provide sufficient, cognizable grounds to deny (or delay) his constitutional right to promptly substitute retained counsel of his choice.

(W)e...restore defendant to the postplea status he occupied in October 2003 prior to the competency hearing or motions to, among other things, vacate the plea.

A victory for the defense, but depending on the temperament of the trial judge who was overturned on appeal, quite possibly a meaningless one.  It would be interesting to learn whether the substitution of new counsel had an effect upon the end result in this case, given the defendant's post-plea status and prior denial of the motion to withdraw his plea.  But, then again, perhaps the new counsel will have better luck at the competency hearing.  You never know...

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...

Third Department Considers Liability of Police Officer Responding to a Call

In Muniz v City of Schenectady, 2007 NY Slip Op 01662, the plaintiffs were injured when their car collided with the vehicle of a police officer who was responding to a call.  The facts are described in the opinion as follows:

(The officer) had stopped at a stop sign on Mader Street and then, although construction blocked his view of Rosa Road, pulled forward into the intersection to make the turn without activating his lights or siren. When he saw plaintiffs' car approaching him in the northbound lane, Glasser stopped his vehicle in that lane, hoping that the car would either stop or proceed around him. Road conditions were wet due to a drizzling rain, however, and plaintiff Roy Muniz, the driver of the other vehicle, was unable to stop before colliding with the front driver's side of Glasser's cruiser.

At issue was whether the officer's conduct was reckless, since  VTL s. 1104(a) exempts the drivers of authorized emergency vehicles responding to an emergency from liability for certain traffic violations unless the driver's conduct was reckless. 

The Court concluded that there was an issue of fact as to whether the officer's conduct in this case rose to the level of recklessness:

In order to demonstrate reckless disregard for the safety of others, a plaintiff must show that the defendant "'has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome"... Upon our review of the record, we agree with Supreme Court that questions of fact exist regarding whether Glasser's conduct was reckless. 

Here, Glasser testified at his examination before trial that although he was responding to a routine, nonemergency call, he began his turn onto Rosa Road despite his limited visibility. Moreover, the accident occurred at approximately 11:00 P.M. and road conditions were wet, but he did not activate his siren or emergency lights. Rather than completing his turn into the southbound lane of Rosa Road which was free from traffic he stopped in plaintiffs' lane of travel when their vehicle was only 20 to 30 yards away.  Under these circumstances, questions of fact remain regarding whether Glasser consciously disregarded a grave risk that his actions would cause a collision and probable harm to plaintiffs  (Internal ciatations omitted).

I agree wholeheartedly with the Court's holding.  It seems to me that more often than not, appellate and trial courts have a tendency to find creative ways to decide issues of fact rather than allowing the fact finder to do so.  Accordingly, I was pleasantly surprised by this opinion. 

Was Insured's Delay In Notifying Insurer Reasonable?

In a recent Third Department decision, Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 2007 NY Slip Op 00360, the Court concluded that, at the very least, there was an issue of fact as to whether the insured's delay in notifying the insurer of a claim was reasonable.

In Klersy, the employee of a sub-contractor fell and was injured while working on a project for which the plaintiff was the general contractor.  Although the plaintiff's president was informed of the fall on the day of the accident, the plaintiff did not notify its insurer of the claim until 4 months later, when it was served with a Summons and Complaint.  Shortly thereafter, the plaintiff's insurer denied coverage on the grounds that the plaintiff had failed to notify it of the occurrence "as soon as practicable."  The plaintiff then commenced a declaratory judgement action seeking to compel its insurer to defend and indemnify it in the underlying lawsuit.

The Court began its analysis by stating the applicable law:

Where a policy of liability insurance requires that notice of an occurrence be given 'as soon as practicable,' such notice must be accorded the carrier within a reasonable period of time...Failure to comply with the notice requirement vitiates the contract of insurance and, under such circumstances, the insurer is not required to demonstrate actual prejudice from the delay in order to successfully disclaim coverage...However, omitting to provide timely notice may be excused in certain situations, such as where the insured has 'a good-faith belief of nonliability,' provided that belief is reasonable...Although the insured bears the burden of proving that there was a reasonable excuse for a delay, the question of such reasonableness is generally a question of fact for a jury...(Internal citations and quotations omitted).

The Court then considered the plaintiff's explanation for the delay.  In support of its claim that the delay in notifying its insurer was reasonable, the plaintiff alleged that it:

(D)id not immediately contact defendant because Clegg was employed by Donato, Donato was supervising Clegg when the accident occurred, and Donato had provided plaintiff with proof of both liability and workers' compensation coverage prior to the construction project...(and) any potential claim would be covered by Donato's insurance...(D)uring the company's nearly 50 years in business, it had minimal experience with job site accidents that resulted in claims...

The Court concluded that the issue of reasonableness was for the jury to decide in light of the particular facts of this case and thus upheld the trial court's denial of the insurer's motion for summary judgment.

I think the Court made the correct decision in this case.  But, I also think that the insured was awfully lucky.  Having been in business for nearly 50 years, the plaintiff should have known to immediately notify its insurer of the fall, even if the company hadn't had much experience with claims.  I've been involved in cases where the insured had far better excuses for a late notice of claim than the plaintiff had in this case and yet was unable to persuade the judge of the reasonableness of the excuse.   After all, like beauty, reasonableness is in the eye of the beholder! 

Judge's Refusal to Grant Defendant's Juror Challenge Requires Reversal

In People v Faulkner, 2007 NY Slip Op 00338, the voir dire was not fully transcribed--to the defendant's benefit.  The Third Department noted that although verbatim transcription of jury selection may be waived, if a defendant is prejudiced by the lack of a full record, reversal is warranted.  The Court stated that where a defendant alleges on appeal that a challenge for cause should have been granted, "courts must look to the full record of what the challenged juror said, not merely snippets of the voir dire."

In this case, the trial judge denied the defendant's challenge of a juror for cause.  The juror in question had informed the court that he'd previously sat on a jury that had convicted members of the family of a co-defendant (who was being tried separately) and that his prior jury service "might affect him."  Mr. Faulkner was also a member of that family, although Mr. Faulkner had a different last name.  However, because of the limited transcription of the jury selection, it was unclear whether the defendant was initially identified to the jury as a member of the same family as his co-defendant, although that fact was later elicited at trial by the prosecutor. 

The Court concluded that the judge's refusal was improper and constituted reversible error:

When potential jurors themselves state that they doubt or question their ability to be fair in the case, the trial judge should either probe further to elicit an unequivocal assurance that the juror can be fair and impartial or excuse the juror for cause...Here, the record does not disclose whether further questions were asked to assure that the juror could sit impartially in order to support denial of defendant's challenge for cause. Under such circumstances, reversal is required... Contrary to the People's argument, the court's denial of defendant's challenge for cause constituted reversible error because after that denial defendant exercised a peremptory challenge to the juror at issue and he and his codefendant exhausted their combined peremptory challenges before jury selection was completed... (Internal citations omitted).

This is an issue that I'd never really given much thought.  My gut instinct is to have everything transcribed, but perhaps it might be good strategy to waive full transcription of voir dire.  It seems like it's a roll of the dice though and that it could come back to bite you in some cases. 

Anyone have any thoughts on the issue?  I'd love to hear them.