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https://www.courtlistener.com/api/rest/v3/opinions/5902622/ | In a support proceeding pursuant to Family Court Act article 4, the petitioner wife appeals from an order of the Family Court, Nassau County (Moody, H. E.), entered March 7, 1986, which granted the respondent husband’s application for a reduction of the amount of child support awarded in a judgment of divorce from $750 per month for the two children of the parties to $70 per week. The petitioner’s objections to that order were overruled in an order of the same court, dated July 2, 1986.
*754Ordered that the order entered March 7, 1986, is reversed, without costs or disbursements, the order dated July 2, 1986, is vacated, and the matter is remitted to the Hearing Examiner to determine whether there should be a reduction in child support based only on the facts which occurred between May 30, 1985, the date of a stipulation between the parties, and August 28, 1985, the date the instant application for downward modification of child support was made.
Pursuant to a separation agreement dated March 14, 1983, the respondent was obligated to pay $750 per month to the petitioner as child support for the two infant issue of the marriage. The parties were granted a conversion divorce on June 5, 1984, and the separation agreement was incorporated but not merged into the judgment.
In February 1985 the respondent moved in the Supreme Court, Nassau County, for a downward modification of child support and the petitioner moved in the same court, inter alia, for enforcement of the judgment and arrears. In settlement of both motions, a "so ordered” stipulation was entered on May 30, 1985, in the Supreme Court, Nassau County (Burstein, J.), which determined an allocation of the proceeds upon the sale of the marital premises.
The stipulation was read into the record and commenced as follows: "me. dimascio [petitioner’s attorney]: It is hereby stipulated and agreed by and between the respective parties and their attorneys, that both of the proceedings presently before this Court, based upon the plaintiffs application seeking various forms of enforcement relief against the defendant, and defendant’s application for a downward modification of * * * child support obligation, are hereby settled on the following terms and conditions”.
It is noted that, pursuant to the terms of the stipulation and settlement, the former marital residence was sold and the respondent received the sum of approximately $50,000 from the proceeds, the petitioner received in excess of $100,000 and the sum of $38,000 was placed in an escrow account to secure the future payment of child support.
On August 28, 1985, the respondent again sought to reduce his child support payments, this time in the Family Court, Nassau County, and the matter was referred to a Hearing Examiner.
Although the Hearing Examiner explicitly acknowledged that she had no authority to review the change of financial circumstances prior to the May 30, 1985 stipulation entered in *755the Supreme Court, Nassau County, she nonetheless permitted testimony to be adduced at the hearing that the petitioner’s income had substantially increased from $3,000 in 1983, to $23,000 in 1985, whereas the respondent’s income had decreased from $33,000 in 1982 to $16,255 in 1985. Based upon these figures, including the period prior to the date of the stipulation, an order dated November 26, 1985, was entered March 7, 1986, in the Family Court, Nassau County, reducing the respondent’s child support obligations from $750 per month to $70 per week. In an order of the same court (Cohen, J.), dated July 2, 1986, the petitioner’s objections were denied and the Hearing Examiner’s order was continued based upon an evaluation of the parties’ changed financial circumstances from the period from 1983 to 1985. We now reverse.
Although the terms of a separation agreement may be modified upon a showing of a change in the financial circumstances of the parties together with the changing needs of the children (Matter of Boden v Boden, 42 NY2d 210; Jensen v Jensen, 110 AD2d 679), it is well established that in reviewing the changed financial status of the parties, the courts may only consider changes from the date of the last petition for modification (Matter of Funt v Funt, 65 NY2d 893; Ardito v Ardito, 97 AD2d 830; Jaworsky v Jaworsky, 87 AD2d 622). Prior to the instant application dated August 28, 1985, for a downward modification of child support, the respondent made an earlier application in February 1985 in the Supreme Court, Nassau County, to determine the propriety of the support provisions. Both the respondent’s downward modification application and the petitioner’s motion for enforcement were heard together, and both were settled by the stipulation dated May 30, 1985, in the Supreme Court, Nassau County. This stipulation settled the respondent’s application for downward modification of child support for the period up to and including May 30, 1985. When the respondent applied to the Family Court on August 28, 1985, for downward modification, the Hearing Examiner apparently failed to consider the consequences of the May 30, 1985, stipulation and decided the application based on evidence of the parties’ financial status prior to May 30, 1985. Since the respondent’s application for downward modification had been previously resolved by the May 30, 1985, stipulation, he was collaterally estopped from relitigating this issue, and the Family Court was obligated to limit itself to an evaluation of the change of the financial circumstances of the parties subsequent to the May 30, 1985, stipulation.
*756We therefore vacate the order modifying downward the child support and remit the matter to the Family Court for a new hearing consistent with this determination. Mangano, J. P., Bracken, Spatt and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/184214/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4553
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALFREDO GOMEZ VELEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00320-F-1)
Submitted: January 10, 2011 Decided: February 3, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Dennis M. Duffy, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury charged Alfredo Gomez Velez with
one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006) (Count One), and two
counts of mailing firearms without authorization, in violation
of 18 U.S.C. § 1715 (2006) (Counts Two and Three). Gomez Velez
pleaded guilty to all three counts without a plea agreement.
The district court sentenced Gomez Velez to sixty-three months’
imprisonment on Count One and twenty-four months each on Counts
Two and Three, all to be served concurrently. This appeal
followed. We affirm.
On appeal, Gomez Velez argues that the district court
committed significant procedural error when it failed to
adequately address his request for a sentence at the bottom of
the U.S. Sentencing Guidelines Manual (2009) range based on his
family ties.
This court reviews a sentence for reasonableness under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires
consideration of the procedural and substantive reasonableness
of a sentence. Id.; United States v. Lynn, 592 F.3d 572, 575
(4th Cir. 2010). Gomez Velez challenges only the procedural
reasonableness of his sentence.
2
A district court must state its reasons for imposing
its chosen sentence, providing sufficient detail to “satisfy the
appellate court that [it] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Rita v. United States, 551 U.S.
338, 356 (2007). Failure to do so constitutes procedural error.
Lynn, 592 F.3d at 575. However, “when a judge decides simply to
apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.” Rita, 551 U.S. at
356; see Lynn, 592 F.3d at 576.
We conclude that the district court adequately
discharged its responsibility to explain the sentence imposed
with sufficient detail to allow for meaningful appellate review.
As in Rita, “the record makes clear that the sentencing judge
considered the evidence and arguments.” Rita, 551 U.S. at 359.
After Gomez Velez made his argument, the district court asked
the Government if it wished to respond. The Government
reiterated its position that a sentence at the upper end of the
Guidelines would be appropriate given Gomez Velez’s previous
conviction for the same offense. The court imposed a sentence
at the top of the Guidelines range, stating that it did so
because Gomez Velez’s “previous encounter with the federal
judiciary offered no deterrence to his engaging in future
criminal conduct.” The district court’s statement that no fine
3
would be imposed because Gomez Velez lacked the ability to pay a
fine “in addition to providing financial support to his
dependents,” demonstrates that the court considered
Gomez Velez’s family circumstances. We therefore find Gomez
Velez’s sentence procedurally reasonable.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
4 | 01-03-2023 | 02-03-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5902623/ | Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 17, 2012, which, to the extent appealed from, granted defendants’ motion for summary judgment dismissing the claims of serious injury under the permanent and significant limitation categories of Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants established prima facie that the injuries that plaintiff allegedly sustained to her cervical and lumbar spine, shoulders, and knees were not caused by the motor vehicle accident. They submitted evidence that plaintiff suffered neck and lower back injuries in an earlier accident, and reports by a radi*416ologist and an orthopedist opining that the MRI films of the allegedly injured body parts revealed a chronic preexisting condition and no radiographic evidence of trauma or causally related injury (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).
Plaintiff failed to raise an issue of fact in opposition. The limitations found by her expert regarding plaintiffs left shoulder were too minor to be deemed “significant” within the meaning of Insurance Law § 5102 (d) (see Phillips v Tolnep Limo Inc., 99 AD3d 534 [1st Dept 2012]). Plaintiffs orthopedic expert noted that defendants’ expert found degeneration in her right shoulder on the MRI, which plaintiff’s radiologist confirmed, but failed to address these findings. Plaintiff submitted no recent quantifications of range-of-motion restrictions in her spine or knees (see Vega v MTA Bus Co., 96 AD3d 506 [1st Dept 2012]), and failed to address the evidence that her neck, back and knee injuries were preexisting conditions. Concur—Friedman, J.P, DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534685/ | NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2066-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DOUGLAS L. BATTLE,
Defendant-Appellant.
_______________________
Submitted April 27, 2020 – Decided May 15, 2020
Before Judges Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Accusation No. 14-08-0379.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson David Harkov, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Elizabeth Marie Newton, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Douglas Battle appeals from a November 16, 2018 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
I.
On March 12, 2013, defendant was indicted for first-degree murder,
N.J.S.A. 2C:11-3(a)(2), second-degree possession of a firearm for an unlawful
purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b). Defendant subsequently pled guilty to one count
of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as charged in a superseding
accusation. Defendant also pled guilty to third-degree aggravated assault as
charged in a separate indictment, which is not the subject of this appeal. In
exchange for his guilty plea, the State dismissed the remaining charges in both
indictments and defendant was sentenced to an aggregate twenty-year custodial
sentence, with an eighty-five-percent period of parole ineligibility pursuant to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed his sentence and we considered his arguments on our
excessive sentence oral argument calendar, see R. 2:9-11, and affirmed.
Defendant did not seek certification.
A-2066-18T1
2
At his plea hearing, defendant admitted he was guilty of the charges and
stated that he entered the hallway of an apartment complex in Trenton late one
night with a firearm and shot Wilfredo Rivera, Jr. He admitted that he was aware
that firing his weapon at such close range would result in Mr. Rivera's death
and, when he shot his weapon at Mr. Rivera, he did not care "whether he lived
or died."
In addition to providing that factual statement, defendant stated he
understood that he would be sentenced to a twenty-year term, subject to NERA,
and acknowledged the following comments by the court:
Mr. Battle, by pleading guilty you're giving up certain
guaranteed constitutional rights. That would include
the right to have a jury determine your guilt or
innocence, the right of being presumed innocent by the
jury, the right to have the State prove your guilt beyond
a reasonable doubt, the right to testify at trial or to
remain silent, your silence cannot be used against you,
a right of confronting State's witnesses and evidence
against you, the right of bringing in your own witnesses
and evidence in your defense.
After further colloquy with defendant, the court accepted the negotiated
plea finding that defendant entered it "voluntarily, with knowledge of the
consequences."
At sentencing, the court considered the arguments of counsel and
statements from family members of the victim, as well as defendant. After
A-2066-18T1
3
finding aggravating factors three, six, and nine, see N.J.S.A. 2C:44-1(a)(3), (6)
and (9), and no mitigating factors, the court sentenced defendant consistent with
the plea agreement. 1
Defendant filed a pro se PCR petition and certification which he
supplemented by appointed PCR counsel's brief. Before the PCR court,
defendant maintained his counsel was ineffective for, among other reasons,
failing to: 1) challenge a witness' recantation and probable cause for the search
warrant of his telephone records, 2) file pretrial motions, and 3) adequately
prepare and confer with him prior to his plea. In his August 17, 2017
certification, defendant further explained his ineffectiveness claims, and
proclaimed his innocence claiming he acted in self-defense.
In PCR counsel's brief, defendant also claimed that his plea counsel failed
to conduct an adequate investigation and elicit a sufficient factual basis. PCR
counsel also argued that defendant's sentencing counsel was ineffective for
failing to advocate for mitigating factors at sentencing.
1
Prior to sentencing, defendant advised the court in a written communication
not in the record that he believed his plea counsel was ineffective and requested
to withdraw his plea. Prior to sentencing, however, defendant stated on the
record that he no longer sought to withdraw his plea and requested that the court
proceed with sentencing.
A-2066-18T1
4
After considering the submissions of the parties and hearing oral
arguments, Judge Thomas M. Brown denied defendant's petition in a
comprehensive October 22, 2018 oral decision and coincident order concluding
that defendant failed to establish a prima facie claim of ineffective assistance of
either his plea or sentencing counsel under the standard established in Strickland
v. Washington, 466 U.S. 668 (1984) and State v. Fritz, 105 N.J. 42 (1987).
Judge Brown rejected defendant's claim that his counsel was ineffective
for allegedly failing to conduct an adequate investigation and interview
witnesses because defendant failed to "to assert the facts that would have been
revealed had his attorney conducted the investigation" and the facts defendant
asserted were "unsupported by any affidavits or certifications." He concluded
that defendant's "bald and conclusory assertions fail to identify credible
exculpatory facts that an investigation would have revealed" and thus, defendant
failed to make a prima facie showing of ineffective assistance of counsel.
Regarding defendant's argument that his counsel was ineffective for
recommending a plea to first-degree aggravated manslaughter without an
adequate factual basis to sustain such a charge, Judge Brown explained that
defendant testified "he shot the victim . . . one time at close range[,]" that he
"understood the likely result would be death which did occur[,]" and admitted
A-2066-18T1
5
that he "did not care whether the victim lived or died when he shot him." He
also noted that the factual basis was not inadequate merely because the only
words defendant uttered were "yes" or "no." Citing State v. Campfield, 213 N.J.
218, 230 (2013) and State v. Sainz, 107 N.J. 283, 293 (1987), Judge Brown
stated that defendant "may either explicitly admit guilt . . . or may acknowledge
facts constituting the essential elements of the crime[,]" and here, defendant's
factual basis "encompassed the elements of the crime and clearly demonstrate[d]
an understanding of the nature of the charge to which he was pleading guilty[,]"
as required by Rule 3:9-2.
Judge Brown further found that defendant could not establish that he
suffered any prejudice from his counsel's representation during the plea as
defendant "indicated he [was] satisfied" with his counsel during the plea
colloquy, defendant "fully completed, initialed and signed the plea form[,]" and
he "testified during the sentencing that trial counsel provide[d] effective
assistance of counsel."
With respect to defendant's claim that his counsel failed to argue in
support of any mitigating factors, Judge Brown found that his sentencing
counsel "argued that [he] acted under provocation" in support of mitigating
factor three, argued that the victim "may have induced or facilitated the
A-2066-18T1
6
commission of defendant's conduct" in support of mitigating factor four, and
noted that defendant "was a young man" and "has a family" in support of
mitigating factor eleven. He concluded that defendant could not make a prima
facie case of ineffective assistance on this claim "simply because the sentencing
[c]ourt established that there were no mitigating factors to apply to the case."
Finally, the court concluded that defendant failed to establish that he was
entitled to withdraw his plea under the four-part test detailed in State v. Slater,
198 N.J. 145 (2009). The court also denied defendant's request for an
evidentiary hearing.
On appeal, defendant limits his arguments to the following contentions:
POINT I
THE [PCR] COURT ERRED WHEN IT FAILED TO
CONCLUDE THAT PLEA COUNSEL'S FAILURE
TO PRODUCE A FACTUAL BASIS FROM WORDS
ARTICULATED BY DEFENDANT ESTABLISHING
HIS GUILT AND WAIVING ANY CLAIM OF SELF[-
]DEFENSE DEPRIVED DEFENDANT OF HIS
CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.
POINT II
THE PCR COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT A NEW SENTENCE
HEARING AS A RESULT OF TRIAL COUNSEL'S
FAILURE TO ARGUE IN FAVOR OF MITIGATING
FACTORS.
A-2066-18T1
7
POINT III
THE PCR COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT'S REQUEST FOR AN
EVIDENTIARY HEARING BECAUSE THE PLEA
AND SENTENCING TRANSCRIPTS
ESTABLISHED A PRIMA FACIE CASE THAT
PLEA COUNSEL FAILED TO ESTABLISH
DEFENDANT WAIVED HIS RIGHT TO CLAIM
SELF[-]DEFENSE AND SENTENCING COUNSEL
FAILED TO ARGUE MITIGATING FACTORS. 2
Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
for the reasons detailed in Judge Brown's thoughtful written opinion. We add
the following comments.
II.
Because defendant's PCR petition is predicated on his claim that his plea
and sentencing counsel were ineffective, he must satisfy the two-part test
pronounced in Strickland by demonstrating that "counsel's performance was
deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 58. The first prong
2
We have reorganized and renumbered the points on appeal for the purposes of
our analysis.
A-2066-18T1
8
requires a showing that "counsel's representation fell below an objective
standard of reasonableness." Strickland, 466 U.S. at 688. It is the defendant's
burden to prove by a preponderance of the evidence that counsel's decisions
about trial strategy were not within the broad spectrum of competent legal
representation. See Fritz, 105 N.J. at 52.
Under the second prong, a defendant must demonstrate that his counsel 's
errors prejudiced the defense to the extent that the defendant was deprived of a
fair and reliable trial outcome. Strickland, 466 U.S. at 687. To prove this
element, a defendant must demonstrate "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
III.
In defendant's first point, he asserts his plea counsel was constitutionally
ineffective because he improperly "produced a factual basis made up of entirely
'yes' and 'no' answers" and thus was not an "admission in defendant's own
words." He also asserts that plea counsel failed to address defendant's assertions
of self-defense, despite information contained in the presentence report that
revealed witnesses "said the victim threatened to shoot defendant." He
maintains that had counsel explained the claim of self-defense, he would have
A-2066-18T1
9
"been [in] a position to knowingly waive his self[-]defense claim as part of his
factual basis or to proceed to trial."
In his second point, defendant maintains that sentencing counsel was
ineffective for failing to advocate for certain mitigating factors. Specifically,
defendant contends that while counsel did make a sentencing argument it was
"essentially an argument in a vacuum" as he never specifically referred to any
of the statutory mitigating factors prescribed in N.J.S.A. 2C:44-1(b) and
specifically those set forth in N.J.S.A. 2C:44-1(b)(3) (defendant acted under a
strong provocation), (4) (substantial grounds to excuse defendant's conduct), (5)
(the victim induced or facilitated the commission of the crime), (9) (defendant's
character and attitude indicated that he was unlikely to commit another offense),
and (11) (imprisonment will entail excessive hardship to him or his dependents),
and had counsel advocated appropriately, defendant would have received less
than the twenty-year NERA sentence. 3 We disagree with all these arguments.
3
Defendant has not challenged the court's determination that he failed to
establish relief under Slater, 198 N.J. at 145, and accordingly any argument
related to that ruling is waived. See State v. Amboy Nat'l Bank, 447 N.J. Super.
142, 148 n.1 (App. Div. 2016) (noting an issue not briefed is deemed waived).
We have nevertheless considered the merits of defendant's Slater-based claims
and agree with Judge Brown that they are without merit.
A-2066-18T1
10
The record fully supports Judge Brown's determination that defendant,
after admitting his guilt, provided an adequate factual basis for his plea, and that
the court fully explained to defendant that by accepting the negotiated plea he
was waiving the right to present "evidence in [his] defense." Further, counsel
was not ineffective in how defendant stated the factual basis for the aggravated
manslaughter charge. In this regard, we note that leading questions are
permitted at a plea hearing to establish a factual basis for a plea. See Campfield,
213 N.J. at 231 ("judge's leading questions may be necessary to ensure an
adequate factual basis for the guilty plea"); State v. Smullen, 118 N.J. 408, 415
(1990) (a plea will be valid even if factual basis for it is a result of leading
questions).
Moreover, the facts here bear no resemblance to those in State v. Urbina,
221 N.J. 509 (2015), principally relied upon by defendant, which held that
"before allowing a defendant to waive a claim of self-defense, we require 'a
thorough and searching inquiry' into 'his or her understanding of the nature of
the right being waived and the implications that flow from that choice." Id. at
528 (quoting State v. Handy, 215 N.J. 334, 362 (2013)). In that case, the
defendant stated during the plea colloquy that he pulled out his gun after the
victim and his cousin pulled out their guns. Id. at 529. The Urbina Court
A-2066-18T1
11
determined that after hearing defendant's statements, "the trial court should have
explored whether defendant was claiming he acted in self-defense . . . ensure[d]
that defendant truly understood the law of self-defense . . . [and] understood that
the State had the burden to disprove self-defense once asserted." Ibid.
The Urbina Court, however, also held that the trial court must inquire
whether defendant is factually asserting self-defense "if a suggestion of self-
defense is raised in the plea colloquy." Id. at 528. Here, defendant did not raise
his self-defense claim before pleading guilty, and there were no indications
during the plea colloquy to suggest that defendant was acting in self-defense
when he shot the victim.
Significantly, defendant's statements before the plea and sentencing
courts, as well as his own PCR submissions, established the legal insufficiency
of any self-defense claim.4 At the plea hearing, defendant admitted he was guilty
and acknowledged that he walked into the apartment building with a gun, he
understood firing his gun at close range would likely result in the victim's death,
he shot the victim, and he did not care whether the victim lived or died.
4
We note that in support of his argument regarding the insufficiency of his
factual basis, defendant relies on the presentence report to support his belated
argument that he acted in self-defense. Nothing in that report, however, supports
the claim that defendant was in imminent danger or that the victim possessed a
weapon.
A-2066-18T1
12
At the sentencing hearing, defendant further admitted to leaving the scene
after his initial interaction with defendant and returned with a gun that he
admitted discharging. Similarly, in PCR counsel's brief, defendant refers to that
same portion of his sentencing hearing transcript when he admitted he "went to
go get a gun" and "came back," but emphasizes that he "armed himself only after
the victim threatened to kill him." Under these circumstances, a claim of self-
defense was not cognizable. See State v. Kelly, 97 N.J. 178, 197 (1984) ("[S]elf-
defense is justifiable 'when the actor reasonably believes that such force is
immediately necessary for the purpose of protecting himself against the use of
unlawful force by such other person on the present occasion.'" (quoting N.J.S.A.
2C:3-4(a))); see also State v. Rodriguez, 195 N.J. 165, 175 (2008) ("[I]f a person
'knows that he can avoid the necessity of using [deadly] force with complete
safety by retreating,' he must do so or lose self-defense as a justification for his
conduct." (quoting N.J.S.A. 2C:3-4(b)(2)(b)) (alteration in original)).
We also concur with Judge Brown that defendant's sentencing counsel was
not ineffective for failing to specifically enumerate the statutory mitigating
factors upon which he relied. Sentencing counsel advocated for leniency and
relied on certain mitigating factors related to the crime and defendant's
background stating:
A-2066-18T1
13
My client has a child who is probably going to be an
adult before he gets out. He was trying to leave that
particular lifestyle. He recognized that participation in
gangs was a no-brainer. It wasn’t getting him
anywhere. And, as you described it, it really was not
benefitting anymore the way that the gang situation has
deteriorated.
Be that as it may, he acted, he brought a gun, the gun
went off and a man died. And he clearly has some
responsibility – a lot of responsibility as to what
happened that evening. Perhaps not alone, but he’s the
one that’s here, and he’s the one that did the shooting.
All I can ask, Your Honor, is to recognize the fact that
he was a young man at the time and that there was to
some extent some provocation.
And certainly there was influence of many others who
had preceded him. I think we can consider his family
situation. There are a lot of things that influenced this
young man the wrong way, and he just didn’t have the
opportunity to – the time to get out of it. I would ask
Your Honor to be lenient.
Defendant's sentencing counsel was not ineffective as it is clear from the
sentencing transcript that the court here comprehensively considered the
aggravating and mitigating factors, finding certain aggravating factors and no
mitigating factors.
We also agree with Judge Brown that defendant's petition failed to
establish that he was prejudiced by his plea counsel's alleged ineffectiveness.
Had defendant not accepted the plea, he faced going to trial on murder and
A-2066-18T1
14
weapons offenses, exposing himself to a potential life sentence with a period of
parole ineligibility of no less than thirty years. See N.J.S.A. 2C:11-3(a)(2).
Given that the State's offer significantly reduced defendant's substantial
sentencing exposure and period of parole ineligibility, defendant failed to
establish that it would have been rational to reject the plea offer and that he
probably would have done so. State v. Maldon, 422 N.J. Super. 475, 486 (App.
Div. 2011).5 Similarly, defendant has failed to establish any prejudice related
to his counsel's performance at sentencing. Finally, because defendant failed to
establish a prima facie case of ineffective assistance, an evidentiary hearing was
not required. State v. Preciose, 129 N.J. 451, 462 (1992).
5
Citing State v. Mitchell, 126 N.J. 565, 577 (1992) and State v. D.D.M., 140
N.J. 83, 95 (1995), the State also maintains that defendant's claims related to his
purported deficient factual basis are not "one of constitutional issue" and
therefore not cognizable for PCR under Rule 3:22-2, particularly where, as here,
defendant did not also proclaim his innocence. See Mitchell, 126 N.J. at 577;
but see Urbina, 221 N.J. at 527 (recognizing that "[c]hallenges to the sufficiency
of the factual basis for a guilty plea" may be brought "on post-conviction
relief"). Because we find no substantive merit to defendant's PCR claims, we
need not address this argument. For similar reasons, we do not resolve the
State's claim that defendant was obligated to raise any error related to his factual
basis on direct appeal and, having failed to do so, his petition is procedurally
barred by Rule 3:22-4.
A-2066-18T1
15
To the extent we have not addressed any of defendant's arguments it is
because we have concluded that they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-2066-18T1
16 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902628/ | Appeal by the defendant, as *759limited by his motion, from a sentence of the County Court, Suffolk County (Sherman, J.), imposed December 1, 1986.
Ordered that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the sentence from a term of imprisonment of QVa to 19 years to a term of imprisonment of 4 to 12 years.
The sentence was excessive to the extent indicated herein. Mollen, P. J., Mangano, Thompson and Lawrence, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902629/ | Appeal by the defendant from five judgments of the Supreme Court, Kings County (Moskowitz, J.), all rendered April 15, 1986.
Ordered that the judgments are affirmed (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902630/ | Order, Family Court, New York County (Mary E. Bednar, J.), entered on or about April 6, 2011, which granted in part petitioner mother’s objections to an order, same court (Ann Marie Loughlin, S.M.), entered on or about October 8, 2010, to the extent of remanding to the Support Magistrate to increase the award of basic child support from $1,842 to $3,000 per month, and to order that the subject child be removed from New York State’s “Child Health Plus” health care program and placed on *417respondent father’s private health insurance plan, unanimously modified, on the law, to vacate the Support Magistrate’s order requiring respondent to make a provision in his testamentary estate for the child in the event he is unable to obtain a life insurance policy for the child’s benefit, and direct that respondent name the child as a beneficiary and petitioner as the child’s trustee on a term life insurance policy in his name in the amount of the monthly order of support multiplied by the number of years the child has until she turns 21 years of age, without any exceptions, and otherwise affirmed, without costs. Order, same court and Judge, entered on or about September 7, 2011, which, upon renewal and reargument, adhered to the original determination requiring respondent to place the child on his health insurance plan, unanimously affirmed, without costs.
In determining the basic child support obligation and respondent’s share of the obligation, the Support Magistrate properly imputed $109,210.31 in adjusted gross income to petitioner and $616,000.09 in adjusted gross income to respondent. The Support Magistrate also applied the correct statutory formula (see Family Ct Act § 413 [1]) and properly determined that, upon consideration of the factors set forth in Family Court Act § 413 (1) (f), it would be “unjust or inappropriate” to apply the statutory “child support percentage” to all of the combined parental income in excess of $130,000 (§ 413 [1] [c] [3]; [f]). However, the Family Court properly determined that the Support Magistrate’s award of child support in the amount of $1,842 per month was insufficient and that an award of $3,000 per month would satisfy the child’s “actual needs” and afford him an “appropriate lifestyle” (Matter of Brim v Combs, 25 AD3d 691, 693 [2d Dept 2006], lv denied 6 NY3d 713 [2006]; see also Matter of Erin C. v Peter H., 66 AD3d 451, 451-452 [1st Dept 2009], lv dismissed and denied 14 NY3d 855 [2010], lv denied 15 NY3d 704 [2010]).
The Support Magistrate properly required respondent to pay 85% of child care expenses and unreimbursed medical expenses (see Family Ct Act § 413 [1] [c] [4], [5] [v]), and properly declined to award petitioner child care expenses incurred on overseas trips with her mother and the child. The Support Magistrate also properly declined to award petitioner prospective private school expenses for the then-toddler (see Family Ct Act § 413 [1] [c] [7]).
Although the Support Magistrate properly ordered respondent to obtain life insurance for himself naming the subject child as the beneficiary and petitioner as the child’s trustee, it *418erred in directing respondent to make a provision in his testamentary estate for the child if life insurance is “unavailable” to respondent. The record shows that respondent has more than two life insurance policies. Accordingly, if respondent is unable to obtain another life insurance policy for the subject child’s benefit, he should be able to add the child as a beneficiary of one of his existing policies. Accordingly, the matter is remanded to the Support Magistrate to order respondent to name the child as the beneficiary and petitioner as the trustee on a term life insurance policy in his name in the amount indicated above, without any exceptions (see Hughes v Hughes, 79 AD3d 473, 476-477 [1st Dept 2010]).
The Family Court properly required respondent to place the child on his health insurance plan. The State’s child health insurance plan should not be used where, as here, one of the parents has health insurance benefits that may be extended to cover the child (see Family Ct Act § 416 [c], [e] [2] [iii]). Respondent has not given sufficient reasons for excluding the child from his plan.
The Family Court properly declined to direct respondent to make child support payments through the Support Collection Unit. The record shows that, from the time of the temporary order of child support until the final order of support, respondent made the required child support payments directly to petitioner on a timely basis. Petitioner has not provided any reason to change the manner of payment.
We have considered the parties’ remaining contentions for affirmative relief and find them unavailing. Concur—Friedman, J.E, DeGrasse, Richter, Abdus-Salaam and Feinman, JJ.
Motion for sanctions denied. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902632/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunkin, J.), rendered June 20, 1979, convicting him of criminal sale of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the court improperly admitted into evidence the substance of conversations between an undercover police officer and a coconspirator. Declarations by a conspirator made during the course of and in furtherance of the conspiracy are admissible against a coconspirator as an exception to the hearsay rule provided that the prosecution establishes a prima facie case of conspiracy independent of the *761declarations (see, People v Sanders, 56 NY2d 51, rearg denied 57 NY2d 674; People v Salko, 47 NY2d 230, remittitur amended 47 NY2d 1010, rearg denied 47 NY2d 1010, 1012; People v Bongarzone, 116 AD2d 164, affd 69 NY2d 892). We find that the People met this burden. Furthermore, the circumstances surrounding the declarations presented sufficient indicia of reliability so that admission of the statements did not violate the defendant’s right to confrontation (see, People v Negron, 122 AD2d 894, lv denied 69 NY2d 714).
The defendant contends that he was deprived of effective assistance of counsel because his attorney failed to present an alibi defense based in part on a hospital record. However, this record, subsequently submitted on a CPL 330.30 motion, indicates that the defendant left the hospital emergency room at least one hour prior to the time he was observed by several police officers at the scene of the drug sale. Nor are we persuaded that the defense counsel failed to offer meaningful representation simply because he failed to obtain the testimony of a potential alibi witness when that witness left the State prior to the trial and did not contact the defendant until after the trial. The circumstances of this case, viewed in totality and as of the time of the representation, reveal that the defendant was not deprived of effective assistance of counsel (see, People v Baldi, 54 NY2d 137).
The sentence imposed upon the defendant, which was the minimum possible under the statute (see, People v Festo, 96 AD2d 765, affd 60 NY2d 809), does not constitute cruel and unusual punishment (see, People v Donovan, 59 NY2d 834).
We have examined the defendant’s remaining contentions, including those raised in pro se brief, and find that they do not warrant reversal of his conviction (see, People v Hewlett, 133 AD2d 417). Bracken, J. P., Weinstein, Rubin and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902634/ | Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered April 12, 1985, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed (see, People v Butler, 111 AD2d 404). Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826243/ | OPINION
FUTEY, Judge.
This action arises from a seizure of a Cessna Aircraft by the United States Drug Enforcement Agency pursuant to the Controlled Substance Act, 21 U.S.C. § 881. The aircraft was subsequently released to the primary lienholder, General Electric Credit Corporation of Tennessee, which successfully petitioned the United States Department of Justice for remission and mitigation. Thereafter, a jury found against forfeiture in a government instituted action against the aircraft. Plaintiffs in this action claim that the seizure and release of the aircraft, in which they had a property interest, constitutes a violation of their rights under the Fifth Amendment. This case is presently before the court on defendant’s motion for summary judgment. For the reasons discussed herein the defendant’s motion is granted and the plaintiffs’ complaint is dismissed.
Factual Background
On November 9, 1977, agents of the United States Department of Justice Drug Enforcement Administration (DEA) seized a 1976 Cessna TCM, Golden Eagle II Aircraft for an alleged violation of the Controlled Substance Act. 21 U.S.C. § 8811 *515The agents acted upon information gathered during an investigation which purportedly led them to believe that Donald Golder2, the plaintiffs son, and other persons were utilizing the aircraft to facilitate the sale of marihuana.3 Plaintiffs, Vicki Cox Golder and Lloyd W. Golder, III, d/b/a L & V Ranch Locators, Inc., the registered owners of the aircraft, were notified of the DEA action immediately. General Electric Credit Corporation of Tennessee (GECC-TN), the first encumbrance holder on the aircraft4, was notified of the seizure on the following day. On November 21, 1977, plaintiffs became in default under the terms of the purchase money loan granted by GECC-TN on the aircraft and remained in default until a settlement was reached in this matter in the United States District Court for the District of Arizona. General Electric Credit Corporation of Tennessee v. Lloyd W. Golder and Vicki Cox Golder, No. CIV 79-099-TUC ACM (D.A.Z. Oct. 12, 1982).
The DEA sent written notice of the seizure of the aircraft to the plaintiffs and GECC-TN on November 25, 1977. That notice advised of the government’s intention to commence a forfeiture action against the aircraft under 19 U.S.C. §§ 1610-12 and 21 C.F.R. § 1316.78, and the process for filing petitions for remission and mitigation under 19 U.S.C. § 1618 and 21 C.F.R. §§ 1316.79-1316.81. GECC-TN filed a petition for remission and mitigation of the aircraft with the United States Department of Justice on December 12,1977. A petition for remission and mitigation was also filed by plaintiffs on December 21, 1977.
In addition, on November 25, 1977, the DEA requested that the United States Attorney for the Northern District of New York institute condemnation proceedings against the aircraft pursuant to 21 U.S.C. § 881. The United States Attorney henceforth filed a complaint for forfeiture in the district court, which was amended on January 9,1978. United States v. 1976 Cessna TCM Airplane, No. 77-CV-526 (N.D.N.Y. March 27, 1982). Thereafter, a United States Marshall took possession of the aircraft pursuant to a warrant of seizure.
Plaintiffs filed an answer to the government’s amended complaint for forfeiture on January 26, 1978, demanding the return of the aircraft and dismissal of the complaint for forfeiture. GECC-TN filed an answer to the government’s complaint on January 30, 1978, which requested that the United States release the aircraft to GECC-TN in consideration of the terms of the security agreement between GECC-TN and the Golders.
On May 12, 1978, GECC-TN’s petition for remission and mitigation was granted. The United States Department of Justice consented to release the aircraft to GECC-TN on condition that bond be posted in substitution for the aircraft and GECC-TN enter into an indemnity agreement with the United States.5 The New York District *516Court approved the bond on March 16, 1979, and the aircraft was released to GECC-TN.
On April 29, 1979, while the government forfeiture action was pending in the district court, GECC-TN sold the aircraft for $230,000.00. After applying the proceeds of the sale to the plaintiffs’ outstanding debt on the aircraft and related expenses, a deficiency remained in the amount of $28,-666.93. The Golders and GECC-TN agreed on a settlement whereby the plaintiffs would deposit $26,475.00 in escrow for the benefit of GECC-TN until final disposition of the forfeiture action. This settlement was approved by a “Stipulation and Order” in the United States District Court for the District of Arizona on January 30, 1981. General Electric Credit Corporation of Tennessee v. Lloyd W. Golder III and Vicki Cox Golder, No. CIV 79-099 TUC ACM (D.A.Z. Oct 12, 1981). The Arizona District Court subsequently approved an “Order Compelling Performance of Settlement Agreement” which confirmed the stipulated compromise, declaring its terms binding and enforceable upon the Golders and ordering the Golders to deposit the agreed sum of money into escrow.6
Trial proceedings in the New York District Court forfeiture action were commenced on March 15, 1982, and on March 27, 1982, a jury verdict was entered denying forfeiture. The United States Court of Appeals for the Second Circuit upheld this judgment in an unpublished opinion. United States v. 1976 Cessna TCM Airplane, 729 F.2d 1441 (2d Cir.1983). Consequently, plaintiffs filed a complaint in the same district court for damages arising from the seizure and release of the aircraft. Lloyd W. Golder III and Vicki Cox Golder, d/b/a L & V Ranch Locators, Inc. v. United States, No. 82-CV-260, slip op. (N.D. N.Y. June 14, 1983). The district court, finding that it had no jurisdiction over plaintiffs claim against the government exceeding $10,000.007, and that the statute of limitations had run on plaintiffs’ tort claim8, dismissed the action. Plaintiffs then filed the present suit against the United States praying for monetary damages for an alleged violation of their rights under the Fifth Amendment. On January 31, 1984, the United States filed a motion in this court to notify FIC and GECC-TN to appear as third party defendants and assert their interest. Oral argument on the defendant’s motion for summary judgment was heard on May 24, 1988.
Discussion
Plaintiffs’ amended complaint appears to allege a violation of both the Fifth Amendment takings and due process clauses.9 Although plaintiffs do not directly argue that this court should grant relief based on the due process clause of the Fifth Amendment, due to the ambiguity of the complaint, this court feels compelled to address this issue.
The Claims Court’s basic jurisdiction is set forth in the Tucker Act, as codified at 28 U.S.C. § 1491 (1982). Section 1491(a)(1) states in relevant portion:
The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any *517express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort.
The Tucker Act, however, “does not create substantive rights enforceable against the United States for money damages.” United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983). A claim for damages must be based upon a violation of a source of law set forth in the Act which can fairly be interpreted as mandating the payment of compensation from the Federal Government. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976); Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-07, 372 F.2d 1002, 1007-09 (1967).
It is well established that the due process clause of the Fifth Amendment of the Constitution does not mandate the payment of money by the United States. Alabama Hospital Association v. U.S., 228 Ct.Cl. 176, 180-81, 656 F.2d 606, 609 (1981), cert. denied, 456 U.S. 943, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982). Cabrera v. United States, 10 Cl.Ct. 219, 222 (1986); Shaw v. United States, 8 Cl.Ct. 796, 800 (1985). Hence, this court lacks jurisdiction to entertain a claim by plaintiff based upon a violation of the Fifth Amendment due process clause arising from the seizure and release of the aircraft.
Plaintiffs allege that the DEA lacked probable cause for the seizure, thus the government’s confiscation and temporary possession of the aircraft resulted in a Fifth Amendment taking, entitling them to just compensation. Their complaint asserts that the issue of probable cause was “adjudicated adversely to the defendant” in the New York District Court forfeiture action, binding this court under the doctrines of collateral estoppel and res judicata. This, however, is not a correct statement of law.
The jury in the district court action was instructed that it could find against forfeiture of the aircraft if either (1) there was no probable cause for the initial seizure of the aircraft, or (2) probable cause for the seizure existed, however, the owners were uninvolved in and unaware of the aircraft’s misuse, and had done all that could be reasonably expected to prevent such misuse. The court requested that the jury return a verdict either in favor of or against forfeiture. The court did not require that the jury state the findings upon which the verdict was based. The jury’s verdict simply stated: “We have reached a decision in favor of the defendant, that the plane should be returned to Mr. and Mrs. Golder.” United States v. 1976 Cessna TCM Airplane, No. 77-CV 526 (N.D.N.Y. March 27, 1982). This court has been presented with no evidence that the verdict resulted from the jury finding a lack of probable cause.
The doctrine of collateral estoppel bars the relitigation of issues essential to a judgment which have been actually and necessarily determined by a competent court when raised again in subsequent litigation involving the parties to the prior action. United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 571, 78 L.Ed.2d 379 (1984); Intern. Order of Job’s Daughters v. Lindeburg & Co., 727 F.2d 1087, 1090-91 (Fed.Cir.1984); Mother’s Restaurants Incorporated v. Mama’s Pizza Inc., 723 F.2d 1566, 1569 (Fed.Cir.1983). Contrary to plaintiffs’ contention, as discussed, the issue of probable cause was not actually and necessarily determined by the district court, nor was it essential to the judgment. Accordingly, the doctrine of collateral estoppel is not applicable in this suit to the issue of probable cause.
Under the doctrine of res judicata a final judgment made by a competent court on a cause of action is a complete bar and is conclusive on that claim when raised in a subsequent suit in which the identity of the parties is the same. Intern. Order of Job’s Daughters, 727 F.2d at 1091. This rule extends to bind parties on any causes of action which should have been raised in the prior suit in addition to those actually litigated. Brown v. United States, 3 Cl.Ct. 31, aff'd 741 F.2d 1374 (Fed.Cir.1984). In the present action plaintiffs claim a violation of their Fifth Amendment rights, *518whereas, in the government instituted forfeiture action the only issue before the court was the propriety of the forfeiture. A claim for recovery under the Fifth Amendment takings clause could not have appropriately been raised in that action. Thus, the doctrine of res judicata is also inapplicable in the present action.
Although there has been no determination as to the existence of probable cause for the seizure of the aircraft, this court can nevertheless decide plaintiffs’ claim for compensation arising from the governmental seizure and release of the aircraft. If probable cause to seize the aircraft did not exist, the DEA action would not give rise to a Fifth Amendment taking claim. A taking within the meaning of the Fifth Amendment occurs when the rightful property, contract or regulatory powers of the government are employed to control rights or property which have not been purchased. Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898-99 (Fed.Cir.1986); Armijo v. United States, 229 Ct.Cl. 34, 37, 663 F.2d 90, 95 (1981); Montego Bay Imports, Ltd. v. United States, 10 Cl.Ct. 806, 809 (1986). No taking claim arises when rights or property have been impaired through unlawful government action. Florida Rock Industries, 791 F.2d at 898-99. A seizure without probable cause would not be a proper exercise of the government’s regulatory power. Therefore, if the DEA did not have probable cause for the seizure, plaintiffs could not sustain a Fifth Amendment taking claim.
In the alternative, if probable cause did exist, the seizure and retention of the aircraft during the pendency of the forfeiture action would not constitute a compensable taking. The Federal Circuit has recently spoken on this issue in United States v. One (1) 1979 Cadillac Coupe DeVille, 833 F.2d 994 (Fed.Cir.1987). This court finds that case dispositive and controlling on plaintiffs claim.
In that case David Wayne Baker was arrested and charged with distribution of cocaine and conspiracy to distribute. Baker’s car was seized pursuant to 21 U.S.C. § 881 for allegedly facilitating the drug violation. An in rem action was instituted in the United States District Court for the Eastern District of Kentucky seeking forfeiture of the vehicle. The district court found sufficient evidence to support a finding of probable cause for the seizure. The forfeiture issue was then tried to a jury, which returned a verdict in favor of Baker, determining that the vehicle “was not used to facilitate a drug transaction....”
In a subsequent hearing the district court ordered the government to return the vehicle to Baker and pay him money damages for the decrease in the value of the car from the time of seizure to the date of the court’s ruling. The district court concluded that the facts in United States v. One 1965 Chevrolet Impala Convertible, 475 F.2d 882 (6th Cir.1973), were “apposite” to those before the court, and “pursuant” to that case the government’s seizure and temporary possession of the car, which resulted in a decrease of its value, deprived Baker of a property right. Consequently, the court held that the government must either return the vehicle to Baker at its value determined at the time of the seizure or pay Baker the equivalent amount.
The Federal Circuit reversed, finding that neither 28 U.S.C. § 2465 nor the Fifth Amendment takings clause required payment for the decreased value of the vehicle. One (1) 1979 Cadillac, 833 F.2d at 998-1000. It held that the lower court improperly relied on One 1965 Chevrolet which provided no support for requiring the government to pay Baker the decreased value of the vehicle. The Federal Circuit distinguished One 1965 Chevrolet on the basis that the law in that case upon which the seizure was effectuated was later held unconstitutional. One (1) 1979 Cadillac, 833 F.2d at 999. In addition, the court stated that because One 1965 Chevrolet was decided before the holding in United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), that the Tucker Act “does not provide any substantive rights enforceable against the United States for money damages”, to the extent that the “decision rested upon the contrary *519view, its precedential value has been vitiated.” One (1) 1979 Cadillac, 833 F.2d at 999. In the present case, plaintiffs reliance on One 1965 Chevrolet is similarly misplaced for the reasons set forth by the Federal Circuit.
In reaching its determination that the seizure and temporary possession of the vehicle was not a compensable taking, the Federal Circuit relied upon the ruling in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). In that case the Supreme Court found that the forfeiture of a leased yacht used in connection with a narcotics violation did not constitute a compensable taking even though the owner was unaware of its illegal use. This conclusion was based on the court’s three factor analysis for determining the types of actions which constitute takings. Specifically, the character of the governmental action, its economic impact, and its interference with reasonable investment expectations. The Federal Circuit held that “[t]he governmental interest that the seizure and temporary possession of Baker’s vehicle served, is similar to and no less strong than the governmental interest upon which the court relied in Ca-lero-Toledo in holding that the forfeiture of property of an innocent owner used in narcotics violations did not effect a taking of the owner’s property.” One (1) 1979 Cadillac, 833 F.2d at 1000. The court further stated that “the fact that the jury ultimately found that the vehicle had not been used to facilitate a narcotics transaction did not ... convert that seizure into a taking.” One (1) 1979 Cadillac, 833 F.2d at 1000. Accordingly, the Federal Circuit held that Baker was not entitled to just compensation under the Fifth Amendment for losses resulting from the government’s seizure and retention of the vehicle between the date of seizure and the date of release to the owner. Finding the same reasoning applicable in the present case, this court concludes that the government seizure and temporary possession of the aircraft did not amount to a Fifth Amendment taking.
Plaintiffs additionally allege that the aircraft was wrongfully released by the government to GECC-TN. However, it has been established in this case through requests for admission that the release of the aircraft was not wrongful.10
Furthermore, plaintiffs are bound by the New York District Court’s approval of the release of the aircraft to GECC-TN, and the Arizona District Court’s approval of the settlement agreement for the balance due on plaintiff’s note for the purchase money loan, to which plaintiffs filed no objection. For this court to find that the aircraft was wrongfully released by the government would necessarily contradict the actions of these district courts. The Claims Court, as a federal trial court, has no jurisdiction to review the actions of other federal courts. 28 U.S.C. § 1491 (1982); Carney v. United States, 199 Ct.Cl. 160, 162, 462 F.2d 1142, 1144-45 (Fed.Cir.1972); Bayshore Resources Co. v. United States, 2 Cl.Ct. 625, 640 (1983). Therefore, this court cannot relieve plaintiffs of the New York and Arizona District Courts actions.
Moreover, plaintiffs claim for a wrongful release of the aircraft sounds in tort. This court’s jurisdiction does not extend to claims in tort. 28 U.S.C. § 1491 (1982); Aviation Contractors Inc. v. United States, 207 Ct.Cl. 973, 974, 521 F.2d 1406, appeal dismissed, 521 F.2d 1406 (1975); Montego Bay Imports Ltd. v. Unit*520ed States, 10 Cl.Ct. 806, 809 (1986). Accordingly, a claim for wrongful release cannot be asserted in this court.
Summary judgment is appropriate where no genuine issue of material fact exist and as a matter of law the moving party is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Weide v. United States, 4 Cl.Ct. 432, 435 aff'd 765 F.2d 157 (Fed.Cir.), cert. denied 474 U.S. 822, 106 S.Ct. 74, 88 L.Ed.2d 61 (1985); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). The evidence must be viewed in a light most favorable to the nonmovant in whose favor all reasonable inferences must be drawn. SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir.1985). This court finds no issues of material fact in dispute, and as a matter of law defendant’s motion is ripe for summary judgment.
Conclusion
For the reasons stated hereinabove, defendant’s motion for summary judgment is granted. The Clerk of the Court is directed to dismiss plaintiffs’ complaint. No costs.
IT IS SO ORDERED.
. This statute provides in pertinent part as follows:
§ 881(a) — The following shall be subject to forfeiture to the United States and no proper*515ty right shall exist in them: (4) All conveyances, including aircraft ... used ... to facilitate the transportation, sale ... of [controlled substances and related items].
§ 881(b) — Any property subject to forfeiture to the United States under this subchapter may be seized ... when — (4) [there is] probable cause to believe that the property has been used ... in violation of this subchapter.
. Donald Golder was never charged by the United States for any crimes relating to the incidents that led to the seizure of the aircraft.
. The government has submitted affidavits of Special Agents David J. Hoyt and Louis F. Bus-sler as well as a report filed on November 11, 1977, regarding the investigation and seizure of the Cessna.
. Plaintiffs signed and executed a $200,000.00 promissory note to GECC-TN on July 31, 1977, which provided for ninety six equal consecutive monthly payments of $3,223.20 with interest at a rate of 11.75% per annum. Plaintiffs also signed and executed, on that date, a chattel mortgage on the aircraft which granted a first encumbrance purchase money security interest in the aircraft to GECC-TN as security on the promissory note.
.Since the forfeiture action against the aircraft had not been finally determined, GECC-TN was required to substitute a bond for the aircraft in the amount of $228,000.00 pending a final outcome in that case. The Federal Insurance Company (FIC), acted as a surety on this bond, thus becoming a joint obligor. GECC-TN and FIC also entered into an agreement with the Department of Justice which provided that they would indemnify the United States in the amount of $228,000.00 against all claims for damages *516raised by the Golders relating to the release of the aircraft to GECC-TN. The terms of the agreement provided that it would only remain in effect for six years after the release of the aircraft.
. The record is void of evidence that this money has ever been placed in escrow. Counsel for GECC-TN responded to this court’s inquiry as to the status of the escrow in a letter dated June 8, 1988, which states that his file "does not indicate that an escrow was ever created.”
. 28 U.S.C. § 1346(a)(2).
. 28 U.S.C. §§ 1346(b) and 2671 et seq.
. Paragraphs 21 and 21a of plaintiffs amended complaint state:
That the aforementioned Aircraft has ben (sic) illegally and improperly seized by the defendant in violation of plaintiffs’ rights under the Fifth Amendment of the United States Constitution.
That the aforementioned Aircraft was taken for a public use without payment to plaintiffs of just compensation as required by the Fifth Amendment of the United States Constitution.
. Third Party defendants GECC-TN and FIC filed a "Request for Admission" on August 3, 1984. Paragraph 11 of that document requests the plaintiffs admit that “[t]he release of the aircraft to General Electric Credit Corporation of Tennessee was not wrongful.” This court’s records do not contain a response from plaintiffs. Thus, under RUSCC 36 the matter is deemed admitted and is conclusively established. RUSCC 36 states in relevant portion as follows:
(a) A party may serve upon any other party a written request for the admission ... of the truth of any matters_ The matter is admitted unless, within 30 days after service of the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter(.... (b) Any matter admitted under this rule is conclusively established. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826244/ | OPINION
NAPIER, Judge:
This case involves a complaint by the wife of a National Park Service ranger alleging an erroneous agency determination regarding the status of her husband under the “Missing Employees Act,” and her consequent claim that she was .deprived of benefits which arose incident to that decision. In response, the United States filed a counter-claim seeking $6,950.00 in allotments paid to plaintiff from her husband’s salary during the time that he was determined to be “missing” by the National Park Service.
The action now comes before this Court on “Defendant’s Renewed Motion for Summary Judgment”, pursuant to Rule 56 RUSCC. Defendant contends there are no material issues of fact in dispute and it is entitled to judgment as a matter of law. Defendant also seeks summary judgment on its counterclaim.
After hearing oral argument, and reviewing the submissions of the parties, relevant statutes and applicable case law, the Court concludes that defendant’s renewed motion for summary judgment regarding plaintiff’s claim must be granted. That portion of defendant’s renewed motion regarding its counterclaim must be denied.
Facts
On January 13, 1980, at approximately 3:00 p.m., Paul Fugate, a park ranger, employed by the National Park Service (NPS) at Chiricahua National Monument (Chirica-hua) in Cochise County Arizona, left the Visitor’s Center after informing a co-worker that he was going to check some hiking trails on the Chiricahua grounds. Mr. Fu-gate never returned and no conclusive evidence of his death, or his continued life, has ever been established.
An extensive search of the Chiricahua area was conducted immediately after Mr. Fugate’s disappearance. The National Park Service, the Cochise County Sheriff’s Department, other federal and local agencies and private citizens were involved in the search. No definitive answer as to Mr. Fugate’s whereabouts was ever discovered.
On April 1, 1980, Howard H. Chapman, Western Regional Director of the National Park Service, acting as the appointed desig-nee of the Secretary of the Department of the Interior, officially declared Mr. Fugate a “missing person”, pursuant to the “Missing Employees Act,” (MEA)1 5 U.S.C. *523§§ 5561, et seq. By letter dated April 2, 1980, Mr. Chapman notified plaintiff, Marianne B. Fugate, Paul Fugate’s wife, that he was establishing a trust account on behalf of Mr. Fugate2 and requested certain information in order to determine whether an allotment should be made to the plaintiff.3 Consequently, plaintiff was granted a monthly allotment of $525.00 beginning June 15, 1980. In July of 1980, plaintiff provided Mr. Chapman with documentation of her financial need, whereupon he increased her allotment to $800.00 per month.
On July 16, 1980, Detective Pat Hanley of the United States Park Police issued a report in which he concluded that Paul Fugate had disappeared of his own volition. Detective Hanley had been sent to Chirica-hua to review the original investigation of Paul Fugate’s disappearance which had been conducted by Lt. Craig Emmanuel, the Chief Investigator of the Cochise County Sheriff’s Department.
On January 29, 1981, Mr. Chapman wrote plaintiff a letter informing her that her husband’s disappearance was under review.4 In that letter, Mr. Chapman told plaintiff “[i]f you have any updated information which might assist us, we would appreciate hearing from you as soon as possible.” He also informed plaintiff by letter of the three possible alternatives which could result from the review:
1. We continue Paul in a missing status, based upon available information/evidence that would indicate he is still alive;
2. Declare Paul dead, based upon available information/evidence that would indicate such; and,
8. Declare Paul absent from duty without authority, based upon available information/evidence that would indicate such.
That letter continued:
A determination under item 1 would result in a continuance of his missing status. Salary payments to you would continue subject to any new information on Paul’s status. Should a determination be made under item 2 or 3, the action to be taken would be to (1) separate Paul from the National Park Service and (2) terminate salary payments to you.
On February 9, 1981, plaintiff responded to Mr. Chapman requesting that the NPS not act hastily “allowing the situation to remain as flexible as possible until some more clear cut evidence becomes available.” Plaintiff expressed her concern regarding apparent “communication gaps” between the various persons and agencies that had investigated her husband’s disappearance and stated that she was skeptical of the thoroughness of Detective Hanley’s *524investigation. Plaintiff informed Mr. Chapman that Lt. Emmanuel was following up a number of leads, including an alleged sighting of Paul Fugate in New Mexico on Labor Day 1980.5 During the review period, the NPS regularly contacted Lt. Emmanuel to determine the status of his investigation.
By letter dated February 23, 1981, Mr. Chapman informed plaintiff of Detective Hanley’s conclusions and advised her that her husband’s status was being changed from “missing” to “absent from duty without authority” (AWA). The letter stated that as a result of this new determination, action was being taken to terminate Paul Fugate’s employment with the NPS and to stop his salary and, that as a result, plaintiff’s allotments would cease. Plaintiff was also notified that allotments already issued to her would have to be paid back to defendant. She was informed that failure to satisfy that debt would result in attachment of her husband’s retirement fund.
On March 18, 1981, the NPS sent plaintiff a letter supplying her with official documentation separating Paul Fugate from the NPS for abandonment of his position. By letter dated June 16, 1981, Mr. Chapman informed plaintiff that the NPS could not waive its collection of the allotments previously issued to her, as she had requested, and would collect its money by placing an administrative lien on Paul Fu-gate’s retirement account.
Subsequently, plaintiff filed an appeal of Mr. Fugate’s removal with the Merit Systems Protection Board (MSPB). The presiding official held that Mrs. Fugate did not have standing to appeal her husband’s removal from service with the NPS and dismissed her appeal.6 Plaintiff’s petition for review of that decision was granted. However, the Board affirmed the presiding official’s decision.7 The United States Court of Appeals for the Federal Circuit affirmed the decision of the MSPB.8
On February 3, 1983, plaintiff filed a complaint in this Court seeking a determination that the defendant had illegally terminated her allotments since its determination that Paul Fugate was AWA was not substantiated. Plaintiff also asked the Court to rule on the issue of whether or not she, or Paul Fugate’s retirement account, could be indebted for the allotments she had received. The defendant filed its answer on August 25, 1983, and simultaneously counterclaimed for the total amount of allotments ($6,950.00) it had paid to plaintiff from January 1980 to February 1981. On February 13, 1984, defendant filed its motion for summary judgment.
Oral argument was held concerning the defendant’s motion, and by Order dated May 29, 1985, Judge Seto directed the National Park Service to reconsider its determination that Paul Fugate was AWA, taking into consideration all relevant evidence that had subsequently developed. That order also directed the NPS to review the possibility of waiving the recovery of allotment payments to the plaintiff in the event the agency sustained its earlier decision.
To comply with Judge Seto’s Order, Mr. Chapman established an Action Plan Committee consisting of five Park Service officials. This group decided that the review would be facilitated best by designating a career Park Service law enforcement ranger, who had no involvement in the 1981 decision, to conduct an oversight investigation of all existing evidence concerning Paul Fugate’s disappearance. That ranger was also to make further inquiry where necessary, and engage an independent consultant to assist him in the review of the evidence.
*525
Development of the Record
Mr. Chapman designated Park Ranger Peter K. Nigh as the career Park Service law enforcement official to conduct the investigation. Ranger Nigh had been an instructor of law enforcement at the Albright Training Center and Federal Law Enforcement Training Center for over 5 years, as well as having served as a ranger at various locations. As the outside consultant, Mr. Chapman engaged Charles E. Scott, a private investigator from Mesa, Arizona. Mr. Scott has been involved in law enforcement work for over 30 years.
Ranger Nigh began his review by spending 3 days in the Park Service Western Region Office in San Francisco, reviewing the administrative files and talking with individuals who had been involved in the investigation. Based upon this review, he and Mr. Scott developed the areas they wished to address.
Mr. Scott interviewed Lt. Emmanuel and found that after a number of years of investigating Paul Fugate’s disappearance, Lt. Emmanuel had come to the conclusion that Mr. Fugate had been the victim of homicide. Mr. Scott also reviewed the scope of Lt. Emmanuel’s investigation and concluded that he had done a thorough job. Both Ranger Nigh and Mr. Scott concurred in Lt. Emmanuel’s conclusion that there was substantial evidence to support the conclusion that Mr. Fugate was a victim of homicide.
Mr. Scott also attempted to obtain the grand jury records related to the homicide investigation. He was informed by the Cochise County Attorney that those records were sealed and could not be obtained without a court order. However, he was assured that there was no information in the grand jury records that was not already in the investigative file.
Ranger Nigh and Mr. Scott learned that few leads existed in the case until 1983, when a suspect was uncovered in Wisconsin. The suspect and his girlfriend were eventually brought to Arizona where both submitted to a polygraph examination. According to the polygraph examiner, the suspect’s performance on the examination was dubious, leading to the suspicion that he had been involved in the disappearance of Paul Fugate in some manner. The suspect’s girlfriend reported that the suspect had stated that he had killed a police officer in Arizona.9
Upon completing his investigation, Ranger Nigh concluded that the evidence10 available indicated that Paul Fugate was most likely the victim of homicide. Thus, Ranger Nigh suggested that Paul Fugate was not a “missing” person, but a deceased person whose body had not been located.
Mr. Chapman reviewed all the information submitted to him by Ranger Nigh and Mr. Scott, as well as a 25-page statement with 25 appendices that had been submitted to him by the plaintiff. This information constituted the record before the agency.
After reviewing the record, Mr. Chapman concluded that the information and evidence developed since his 1981 decision did not support his earlier conclusion that Paul Fugate had voluntarily abandoned his post of duty. Alternatively, Mr. Chapman concluded, that the evidence established a reasonable presumption that Paul Fugate had been a victim of homicide on January 13, 1980 — the day he was first discovered to be missing. His determination, filed in this Court on December 5, 1985, was accompanied by a detailed report of the investigation and the findings of the Action Plan Committee- which had been established.
*526Thereafter, on March 6, 1986, defendant filed a “Renewed Motion for Summary Judgment.” Plaintiff filed a response to that motion on May 27, 1986. The Court held status conferences on May 27 and August 5, 1987. The parties were unable to reach settlement and the Court heard oral argument on defendant’s renewed motion on September 30, 1987.
Discussion
Jurisdiction is proper in this Court under 28 U.S.C. § 1491(a)(1), which vests jurisdiction in the Claims Court over claims against the United States founded on “any Act of Congress or any regulation of an executive department * * This action stems from a dispute regarding a federal agency determination made pursuant to the law established by Congress governing “Payments To Missing Employees.” 5 U.S. C. § 5561, et seq.
Plaintiff contests the cessation of salary allotments she had been receiving after her husband disappeared. The NPS discontinued those allotments when it declared her husband AWA, and the agency refused to reinstate them when it later determined her husband to be dead. The MEA does not prescribe the standard of judicial review applicable to a contested agency status determination regarding an employee that cannot be located, nor does it prescribe the standard of judicial review applicable to an action contesting a termination of allotments.
The NPS’ determination of Paul Fugate’s death and corresponding date thereof, were conclusions based on extrapolation of the facts in the record before the agency. In Association of Data Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System, 745 F.2d 677 (D.C. Cir.1984), Judge Scalia discussed the standard of judicial review applicable when a court tests a factual foundation upon which an agency’s determination was based.
[I]n their application to the requirement of factual support the substantial evidence test and the arbitrary or capricious test are one and the same. The former is only a specific application of the latter * * *
******
Thus, an agency action which is supported by the required substantial evidence may in another regard be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” —for example, because it is an abrupt and unexplained departure from agency precedent.
******
When the arbitrary or capricious standard is performing that function of assuring factual support, there is no substantive difference between what it requires and what would be required by the substantial evidence test * * *.
745 F.2d at 683-84. Thus this Court’s review of the NPS’ determination will focus on whether or not that decision was supported by substantial evidence in the record before the agency. If the Court finds the agency decision was supported by substantial evidence, then the Court must only be assured that the agency’s ultimate conclusion was not arbitrary and capricious in light of that support.
Because plaintiff is seeking a money judgment regarding the allotments to which she claims entitlement, she “is not barred from litigating the incidental, though necessary, question” of Paul Fugate’s status. Midgett v. United States, 221 Ct.Cl. 171, 177, 603 F.2d 835, 838 (1979). The “action is not one for declaratory judgment alone, which we are without jurisdiction to hear.” Midgett, 221 at 177, 603 F.2d at 838 (citing United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), rev’g, 182 Ct.Cl. 631, 390 F.2d 894 (1968)).
Status Determination
Section 5565 of the Missing Employees Act entitled “Agency Review” states: *527concerned, he shall have the case fully reviewed. After that review and the end of 12 months in a missing status, or after any later review which shall be made when warranted by information received or other circumstances, the head of the agency concerned or his designee may—
*526(a) When an employee has been in a missing status almost 12 months and no official report of his death or the circumstances of his continued absence has been received by the head of the agency
*527(1) direct the continuance of his missing status, if there is a reasonable presumption that the employee is alive; or
(2) make a finding of death.
(b) When a finding of death is made under subsection (a) of this section, it shall include the date death is presumed to have occurred for the purpose of the ending of crediting pay and allowances and settlement of accounts. That date is—
(1) the day after the day on which the 12 months in a missing status ends; or
(2) a day determined by the head of the agency concerned or his designee when the missing status has been continued under subsection (a) of this section.
(c) For the purpose of determining status under this section, a dependent of an employee in active service is deemed an employee. A determination under this section made by the head of the agency concerned or his designee is conclusive on all other agencies of the United States. This section does not entitle a dependent to pay, allowances, or other compensation to which he is not otherwise entitled.
It is clear from reading the statute that Congress explicitly delegated the authority to review the status determination of a missing employee to the head of the agency involved. Based on that review, the head of the agency is then given discretion to “direct the continuance of the missing status if there is a reasonable presumption that the employee is alive,” or “make a finding of death.” The only restriction that Congress placed on this delegation of authority and discretion is that the agency head “shall have the case fully reviewed,” before he makes his determination.
Once a finding of death is made under section 5565(a)(2), above, the head of the agency “shall include the date death is presumed to have occurred,” and that date shall be either “the day after the day on which the 12 months in a missing status ends,” or “a day determined by the head of the agency concerned or his designee when the missing status has been continued under subsection (a) * * *.” 5 U.S.C. § 5565(b). Section 5565(c) states that a “determination under this section made by the head of the agency concerned or his designee is conclusive on all other agencies of the United States.” Case law interpreting these sections of Title 5 have noted that “[t]he discretion give to the Secretary [of an agency] or his designee by the Missing Persons Act is extensive.” Luna v. United States, 810 F.2d 1105, 1107 (Fed.Cir.1987) (citing Cherry v. United States, 225 Ct.Cl. 312, 640 F.2d 1184, 1196 (1980) (Cherry I)). Further, “[i]t requires an extraordinary case * * * for us to conclude that the Secretary abused his discretion.” Luna, 810 F.2d at 1108 (quoting Pitchford v. United States, 229 Ct.Cl. 114, 666 F.2d 533, 535 (1981)).
Plaintiff argues that a section of Arizona’s Probate Code, Ariz.Rev.Stat.Ann. § 14-1107, that dictates when a missing person is to be presumed dead, should have been utilized by the NPS in order to determine Paul Fugate’s date of death. However, the law applicable to the instant case, i.e., the Missing Employees Act, like other similar statutes which have been construed by the courts,
is federal legislation administered by a national agency, intended to solve a national problem on a national scale * * *. It is an Act, therefore, in reference to which it is not only proper but necessary for us to assume, “in the absence of a plain indication to the contrary, that Congress * * * is not making the application of the federal act dependent on state law.” Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 485, 87 L.Ed. 640.
NLRB v. Hearst Publications, 322 U.S. 111, 123, 64 S.Ct. 851, 857, 88 L.Ed. 1170 (1944) (construing the Wagner Act).
Further, the Supreme Court stated:
*528Nothing in the statute’s background, history, terms or purposes indicates its scope is to be limited by such varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated local problems.
Hearst Publications, 322 U.S. at 123, 64 S.Ct. at 857.
The plain language of the Missing Employee’s Act directs that the head of the agency make a determination of “missing” or “dead” based on the information he has available to him.
During oral argument, plaintiff placed great emphasis on Midgett v. United States, 221 Ct.Cl. 171, 603 F2d 835 (1979). In Midgett, the Court of Claims was called upon to determine whether the Army Board for Correction' of Military Records (ABCMR) had erroneously refused to change a missing soldier’s status from “absent without leave” (AWOL) to “dead.” Defendant in Midgett argued that the Court of Claims was “without jurisdiction to alter prior determinations of the status of military personnel.” Midgett, 221 Ct.Cl. at 180, 603 F.2d at 840. The Court of Claims in Midgett concluded that authority construing the Missing Persons Act has “dismiss[edl out of hand defendant’s suggestion that the determinations were expressly intended * * * to be nonreviewable and conclusive.” Id. (quoting Crone v. United States, 210 Ct.Cl. 499, 521, 538 F.2d 875, 877 (1976)).
However, the Court in Midgett went on to state that a party contesting a status determination made under the MPA is bound by the agency’s determination “unless he can meet the difficult standard of proof that the [agency’s] decision was illegal because it was arbitrary, or capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation, or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, and money is due.” Midgett, 221 Ct.Cl. at 180, 603 F.2d at 840 (quoting Sanders v. United States, 219 Ct.Cl. 285, 298, 594 F.2d 804, 811 (1979)). The Court must therefore limit its review to the question of whether or not the decision of the NPS, that Paul Fugate died on January 13, 1980, was arbitrary or capricious or not supported by substantial evidence.
In determining whether [the agency’s] decision is supported by substantial evidence, the standard is not what the court would believe on a de novo appraisal, but whether the administrative determination is supported by substantial evidence on the record as a whole.
Brewer v. United States Postal Service, 227 Ct.Cl. 276, 279, 647 F.2d 1093, 1096 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982) (citing Pascal v. United States, 211 Ct.Cl. 183, 188, 543 F.2d 1284, 1287 (1976)).
In Midgett, the court stated:
In circumstances where a determination of status is required, and no evidence available would justify one choice or another, an administrative presumption of a particular status based on a policy rational * * * might be justified. Thus, the ABCMR’s determination of Midgett’s status might be justified if there was no evidence to the contrary.
Midgett, 221 Ct.Cl. at 188-89, 603 F.2d at 845. In Midgett, plaintiffs had presented evidence that their son had not deserted, but had been killed, and requested that his military records be adjusted accordingly. Unlike Midgett, plaintiff in the instant case has presented no plausible evidence that would suggest her husband’s life continued after the date of his disappearance. As the record in this case reveals, experienced and qualified law enforcement personnel, as well as a private investigator, conducted an extensive investigation and concluded that Paul Fugate was a victim of homicide on January 13, 1980. The NPS may rely on their determination which was based on a solid record constituting substantial evidence. Their application of that evidence in reaching a final conclusion that Mr. Fu-gate was dead was not arbitrary or capricious. Indeed, the passage now of more than 8 years since Mr. Fugate’s last known *529contact makes such a determination even more compelling. It stands in sharp contrast to the original determination made in Midgett, which the court found “was based on nothing more than administrative convenience and a hearsay statement, uncorroborated and of questionable probative value * * Midgett, 221 Ct.Cl. at 184, 603 F.2d at 842.
A status determination made by an agency under the Missing Employees Act, is rebuttable. Midgett, 221 Ct.Cl. at 190, 603 F.2d at 848. However, great deference is given to the decision of the agency, and consequently, a moving party must overcome a great burden to convince a court to overturn an alleged erroneous agency determination.
To recover for failure to correct an alleged injustice, such as perhaps based on gross material error of fact or an action contrary to all evidence, it must be proved that such failure was arbitrary and capricious, or in bad faith, or contrary to law, or without rational basis, seriously prejudicial to plaintiff, and with monetary consequencies. In such event, the abuse of administrative discretion rises to the level of legal error which merits judicial relief. These are comparatively rare cases. Perhaps they are infrequent because the proof must overcome the strong, but rebuttable, presumption that administrators [of agencies] like other public officers, discharge their duties correctly, lawfully, and in good faith. (Citations omitted.)
Sanders, 219 Ct.Cl. at 301-02, 594 F.2d at 813.
The presumption that agency officials act in good faith is a premise axiomatic to the very existence of government agencies. If it is not upheld, and accepted, the very fabric of administrative process will soon unravel.
Since Paul Fugate has never been found, it cannot be disputed that a conclusion contrary to the one reached by the NPS regarding his status could have been reached. Even if this Court was swayed to a decision contrary to the one reached by the NPS, it cannot substitute its own judgment for that of the agency’s as long as the NPS’ decision was justifiably based on substantial evidence in the record before it, and thus, not arbitrary and capricious. See e.g., Snell v. United States, 168 Ct.Cl. 219, 227 (1964). Contrary subjective determinations may often be reached by reasonable minds considering the same evidence. However, deference is given to the agency in the absence of a clear abuse of discretion and the agency’s determination must be upheld by the courts.
The National Park Service did not make its final determination that Paul Fugate had died on the date of his disappearance until almost 5 years had elapsed with no concrete indications of Mr. Fugate’s continued existence. All reasonable leads had been followed but to no avail. Polygraph examinations were administered to a suspect regarding Paul Fugate’s disappearance and an experienced polygraph examiner concluded that the suspect had either killed Paul Fugate or had knowledge of the facts surrounding his disappearance. In addition, plaintiff supplied the NPS with all the information she had regarding her husband’s alleged continued existence. The record upon which the NPS based its determination has been reviewed by this Court, as well as the procedures used by the NPS in the creation and consideration of that record. The Court concludes that Mr. Chapman, Regional Director of the National Park Service, acting as the designee of the Secretary of the Department of the Interior, acted in good faith and justifiably based his decision on substantial evidence when he determined that Paul Fugate was killed on January 13, 1980.
To go behind an agency decision which is grounded on a rational basis, even though it may not be the only reasonable conclusion which could have been reached, would put this Court in the awkward position of substituting its judgment for the technical expertise of administrative officials who are trained in agency procedure, and, thus, vitiate the entire administrative scheme contemplated in the statute. As the Court of Claims has stated:
*530We do not think that we should lightly substitute judicial oversight for that of the executive branch in an area where practical considerations of administration and experience should be paramount and where the executive’s prerogative and responsibility is to take expeditious action to insure the efficiency and discipline of the huge federal bureaucracy in the interests of good government.
Wathen v. United States, 208 Ct.Cl. 342, 353, 527 F.2d 1191, 1197-98 (1975).
Deprivation of Allotments
The Missing Employees Act authorizes continuation of pay and allowances to employees, as defined under the Act, while they are in a missing status. The Act authorizes the head of the agency, or his designee, which employed the missing person, to initiate, continue, discontinue or alter pay allotments “from the pay and allowances of an employee in a missing status when that action is in the interests of the employee, his dependents, or the United States.” 5 U.S.C. § 5563(e). Thus, the question before the Court is, whether the head of the NPS correctly exercised his discretion when he terminated plaintiff’s allotments when her husband’s status was changed from “missing” to AWA.
Section 5562 of the Missing Employees Act governs pay and allowances to missing employees and their dependents. In pertinent part, it states:
An employee who is officially determined to be absent from his post of duty without authority is indebted to the United States for payments of amounts credited to his account under subsection (a) of this section for the period of that absence.
5 U.S.C. § 5562(c).
The plain language of section 5562 makes it clear that once an employee is determined to be AWA, all pay and allowances to him cease. Additionally, it states that if an employee, originally thought to be missing, is later determined to be AWA, all amounts paid out to him while he was in a missing status are to be repaid to the Government. Therefore, once the NPS determined Paul Fugate to be AWA, his pay and allowances from the NPS were terminated. Accordingly, no allotments could then be awarded to plaintiff from his pay and allowances, since in fact, they statutorily no longer existed. The Court appreciates the predicament plaintiff was placed in by defendant’s termination of her allotments. However, the Congressional mandate conveyed in the plain language of the statute must be upheld. The NPS was acting within its delegated authority when it terminated plaintiff’s allotments upon determining that her husband was AWA.
Plaintiff claims that the decision to terminate these allotments without affording her a full adjudicative hearing deprived her of property without due process of law. However, section 5563(e), clearly vests discretion with the head of the agency to take whatever action he believes in good faith, to be in the “interests of the employee, his dependents, or the United States.” Termination of pay and allowances upon a finding that an employee has deserted his post is in the interest of protecting the treasury of the United States. Thus, plaintiff had no constitutionally-protected property interest in the allotments. They were to be dispersed, in good faith, at the discretion of the head of the agency.
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
Allotments from a missing employee’s pay and allowances are given, under the MEA, at the discretion of the head of the agency. He may not arbitrarily commence or terminate these allotment payments. To uphold the statute he must exercise his discretion in good faith. In this case, the head of the NPS, in good faith as demonstrated in the record, concluded that termination of plaintiff’s allotments was proper under the statute.
*531In Cherry v. United States, 225 Ct.Cl. 312, 640 F.2d 1184 (1980), aff'd in part, rev’d in part and remanded, 697 F.2d 1043 (Fed.Cir.1983), an action for recovery of military pay that a soldier claimed had been dispersed to his wife, to his disadvantage, while he was missing plaintiff claimed that the Missing Persons Act violated constitutional due process guarantees since it did not grant him, or a guardian of his, an opportunity to be heard before any actions regarding allotments from his pay were taken. The court in Cherry declared that “[c]learly to do this would have much better respected the equality of treatment of servicemen, and dependents, as the statute implicitly requires, but we do not hold it is constitutionally necessary.” Cherry, 225 Ct.Cl. at 317, 640 F.2d at 1188. The Court continued:
The main reason why we think the statute is constitutional is because in reading § 553(e) we find it implicit that Congress intended that the Secretary should exercise his/her discretion fairly and carefully. There is a general substantial requirement that, to be valid, and administrative determination must not be made arbitrarily.
* * * * * *
However, it is not necessary that the Secretary assume the role of trustee in order to exercise the statutory duties in a manner that is constitutionally sufficient. As we explained above, all that is required of him is that he exercise the statutorily granted discretion fairly, without abusing it.11
Cherry, 225 Ct.Cl. at 317-18, 640 F.2d at 1188.
Thus, it is clear that the Missing Employees Act gives great discretion to the Secretary of the involved agency with regard to allotments from a missing employee’s pay. Furthermore, if that employee’s status is changed to AWA, as was the plaintiff’s husband, section 5562 of the Act requires that the employee’s pay and allowances cease. The Act has been held not to violate any constitutionally-protected interest by its delegation of discretion to the Secretary. Accordingly, plaintiff’s claim that her constitutional rights were infringed upon must fail.
It must be noted that at the time the NPS changed Mr. Fugate’s status from “missing” to AWA, it did so based upon the record before it at that time. When the NPS later determined Mr. Fugate to be deceased, its decision was supported by evidence collected subsequent to the time of the AWA determination. Although the agency later altered the AWA determination, it cannot be said that at the time the agency issued it, it was an arbitrary and capricious determination. It was based on the substantial evidence in the whole record before the agency at that time. When Mr. Fugate was declared dead by the agency, his pay and allowances ceased pursuant to 5 U.S.C. § 5562(b)(2). Additionally, once the NPS determined that Mr. Fu-gate had died, plaintiff became entitled to benefits incident to that determination.12
Counterclaim
Defendant counterclaims for the allotments paid to plaintiff during the period that her husband was declared as “missing.” As discussed, above, section 5562(c) of the Missing Employees Act states that an employee “determined to be absent from his post of duty without authority is indebted to the United States for payments of amounts credited to his account [or allocated therefrom] * * * for the period of that absence.” However, section 5562(c) must be read in conjunction with section 5566 of the Act which states, in pertinent part:
an allotment paid from the pay and allowances of an employee for the period he in a missing status may not be collected from the allottee as an overpayment *532when payment was caused by delay in receiving evidence of death.
5 U.S.C. § 5566(f).
Although defendant did first declare Mr. Fugate AWA, it later determined, based upon subsequently received evidence, that he had died on the date he originally disappeared. Thus, the alleged overpayment by the Government was, in fact, due to a “delay in receiving evidence of death.” The defendant’s counterclaim is denied.
Conclusion
The defendant’s declaration that Paul Fugate died on January 13, 1980, was a decision it was authorized to make pursuant to the discretion it is statutorily granted by Congress. Since that determination was not arbitrary and capricious, and was based on the substantial evidence contained in the record before the agency, it must be honored by this Court. Any relationship between this determination and plaintiff’s due process rights was incidental, and, as discussed above, her constitutional rights were not thwarted.
The termination of plaintiff’s allotments by the NPS, upon its determination that Mr. Fugate was AWA, was mandated by the Missing Employees Act in order to prevent erroneous depletion of the federal treasury. Additionally, all allotments from an employee’s pay are given at the discretion of the head of an agency, within the parameters of good faith. Plaintiff had no constitutionally-protected property rights regarding these allotments and their termination did not entitle her to a hearing. Accordingly, summary judgment must be granted in favor of the defendant regarding plaintiff’s claim and the complaint must be dismissed.
The allotments paid to the plaintiff while her husband was in a “missing” status were paid due to a delay in receipt of evidence of Mr. Fugate’s death by the agency. Therefore, the defendant’s renewed motion regarding its counterclaim is denied.
Accordingly, the Clerk of the Court is directed to dismiss the plaintiff’s complaint as well as the defendant’s counterclaim. No costs.
. The MEA is derived from what was formerly known as the “Missing Persons Act" (MPA), which was enacted in 1942. Pub.L. No. 77-490, 56 Stat. 143, 50 U.S.C.App. § 1001, et seq. That *523Act covered both civilian and military personnel of the federal Government. In 1966, Congress codified a military version of the Missing Persons Act in 37 U.S.C. §§ 551-58 and a civilian version in 5 U.S.C. §§ 5561-68. Pub.L. No. 89-554, 80 Stat. 378. This codification was intended to make no substantive change in the existing law. The reports from both houses of Congress dealing with the proposed legislation which became Pub.L. No. 89-554 make clear that the bill was intended merely to codify existing law and not to enact substantive changes:
The purpose of this bill is to restate in comprehensive form, without substantive change, the statutes in effect before July 1, 1965, that relates to Government employees, the organization and powers of Federal agencies generally, and administrative procedure, and to enact title 5 of the United States Code.
H.R.Rep. No. 901, 89th Cong., 1st Sess. 1 (Aug. 31, 1965); S.Rep. No. 1380, 89th Cong. 2nd Sess. 18 U.S.Code Cong. & Admin.News 1966, p. 429 (July 21, 1966).
. An employee in a missing status is entitled to have all pay and allowances due him credited to his account, under 5 U.S.C. § 5562.
. The head of an agency or his designee "may direct the initiation, continuance, discontinuance, increase, decrease, suspension, or resumption of an allotment from the pay and allowances of an employee in a missing status when that action is in the interests of the employee, his dependents, or the United States.” 5 U.S.C. § 5563(e). The decision regarding whether or not to issue an allotment is thus, left to the discretion of the head of the agency or his designee, and to be determined in “good faith."
. The Missing Employees Act requires the head of the agency concerned to have a case fully reviewed if "an employee has been in a missing status almost 12 months and no official report of his death or the circumstances of his continued absence has been received * * 5 U.S.C. § 5565(a).
. In February 1981, Detective Hanley investigated this alleged sighting of Paul Fugate and concluded that it had been a case of mistaken identification.
. Fugate v. Dept. of the Interior, Decision No. SFO7528110812 of the Merit Systems Protection Board, September 17, 1981.
. Fugate v. Dept. of the Interior, 19 M.S.P.R. 506 (1984).
. Fugate v. Merit Systems Protection Board, 765 F.2d 162 (Fed.Cir.1985).
. Paul Fugate, at the time of his disappearance, had been wearing a Park Ranger's uniform and, thus, could have been mistaken for a police officer.
. Specifically, Ranger Nigh stated his conclusion was supported by the fact that the deception detected by the polygraph examinations given to the suspect in Mr. Fugate’s disappearance had caused the Cochise County Sheriff’s Department to change the nature of that investigation from a missing person to a homicide, indicating their belief that Paul Fugate was dead. Also, Ranger Nigh stated that it was his belief that it would be very difficult for a missing person to remain totally undetected for almost 6 years without some clue to his whereabouts, if he was alive.
. On appeal, the United States Court of Appeals for the Federal Circuit, affirmed this portion of the Court of Claims opinion. See Cherry v. United States, 697 F.2d 1043, 1051 (Fed.Cir.1983).
. During oral argument, plaintiff acknowledged that efforts to collect these death benefits had begun. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902639/ | Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 29, 2012 which, upon reargument, denied defendants-appellants’ motion for summary judgment dismissing the complaint, unanimously reversed on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered February 10, 2012, which denied the aforementioned motion for summary judgment in *419the first instance, unanimously dismissed, without costs, as academic.
Here, the court denied the initial motion, without addressing the merits, because it was filed under an incorrect index number; however, upon subsequently purporting to deny reargument, the court proceeded to address the merits of the motion and adhered to its original determination. The order is thus appealable to this Court as of right (see Foley v City of New York, 43 AD3d 702, 703 [1st Dept 2007]; CPLR 5701 [a] [2] [viii]).
On the merits, the photographs identified by plaintiff as depicting the location of the accident on the date of the accident show a trivial defect, which is not a trap or snare. The plaza pavers in the photographs are not broken or uneven, and the slight incline or slope of the surface by the drain is shallow and gently graded. Plaintiff testified that the lighting of the areas was adequate. Accordingly, summary judgment was appropriate (see Leon v Alcor Assoc., L.P., 96 AD3d 635 [1st Dept 2012]; Menendez v Dobra, 301 AD2d 453 [1st Dept 2003]).
Plaintiffs expert’s opinion was insufficient to raise a triable issue of fact because it did not cite violations of any relevant Building Code provisions, and the expert did not inspect the scene until more than four years after the accident, during which time the condition of the area may have changed (see Alston v Zabar’s & Co., Inc., 92 AD3d 553 [1st Dept 2012]). Concur—Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902640/ | Appeal by the defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County (Miller, J.), imposed May 21, 1986, upon his conviction of attempted murder in the second degree, on his plea of guilty, the sentence being a term of 4 to 12 years’ imprisonment.
*765Ordered that the sentence is affirmed.
Initially the defendant pleaded guilty to the crime of attempted murder in the second degree on January 21, 1986, before Justice Heller with a promise of a sentence of 2 to 6 years’ imprisonment, provided the probation report did not indicate a greater sentence was necessary. On the date of the sentence the Judge informed the defendant that based upon information contained in the victim’s impact statement in the presentence report, she could not in good conscience impose the promised sentence. The defendant was afforded the opportunity to withdraw his plea of guilty and his application for that relief was granted. The case was thereupon transferred to another Judge for trial.
Thereafter, the defendant again pleaded guilty before Justice Miller. This time the promised sentence was 4 to 12 years’ imprisonment which was in fact the sentence imposed. The defendant now seeks specific performance of the original sentence promise.
A defendant is entitled to specific performance of a sentence promise if he has so changed his position, in reliance on the promise, that the withdrawal of his plea of guilty cannot restore him to his original position (see, People v McConnell, 49 NY2d 340; People v Danny G., 61 NY2d 169). The defendant has advanced no argument that his position changed in any way in reliance on the original promise.
Where, as here, the court feels that it cannot, in good conscience, impose the promised sentence because of matters learned after the taking of the plea, the defendant is only entitled to the opportunity to withdraw his guilty plea, which opportunity was afforded him (see, People v Selikoff, 35 NY2d 227, cert denied 419 US 1122; People v Schultz, 133 AD2d 862; People v Sterling, 133 AD2d 865).
We further note that the sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902642/ | Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 29, 2012 which, upon reargument, denied defendants-appellants’ motion for summary judgment dismissing the complaint, unanimously reversed on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered February 10, 2012, which denied the aforementioned motion for summary judgment in *419the first instance, unanimously dismissed, without costs, as academic.
Here, the court denied the initial motion, without addressing the merits, because it was filed under an incorrect index number; however, upon subsequently purporting to deny reargument, the court proceeded to address the merits of the motion and adhered to its original determination. The order is thus appealable to this Court as of right (see Foley v City of New York, 43 AD3d 702, 703 [1st Dept 2007]; CPLR 5701 [a] [2] [viii]).
On the merits, the photographs identified by plaintiff as depicting the location of the accident on the date of the accident show a trivial defect, which is not a trap or snare. The plaza pavers in the photographs are not broken or uneven, and the slight incline or slope of the surface by the drain is shallow and gently graded. Plaintiff testified that the lighting of the areas was adequate. Accordingly, summary judgment was appropriate (see Leon v Alcor Assoc., L.P., 96 AD3d 635 [1st Dept 2012]; Menendez v Dobra, 301 AD2d 453 [1st Dept 2003]).
Plaintiffs expert’s opinion was insufficient to raise a triable issue of fact because it did not cite violations of any relevant Building Code provisions, and the expert did not inspect the scene until more than four years after the accident, during which time the condition of the area may have changed (see Alston v Zabar’s & Co., Inc., 92 AD3d 553 [1st Dept 2012]). Concur—Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902643/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered January 19, 1983, convicting him of attempted rape in the first degree, sexual abuse in the first degree, and robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the *767People (see, People v Contes, 60 NY2d 620), there was legally sufficient evidence that the complainant had suffered physical injury during the robbery. The complainant testified that she felt pain in two instances: when the defendant grabbed her neck to restrain her from running away, and when he kicked her as he was fleeing the scene. Moreover, the medical reports indicated that she had suffered bruises and contusions. Finally, she was dragged down a flight of steps face first, as evidenced by her own testimony and the fact that she suffered bruises on her forehead. Taken together, it was reasonable for the jury to have determined that she had suffered substantial pain during the robbery (cf., People v Latora, 128 AD2d 807, lv denied 69 NY2d 952), and the verdict in that respect was not against the weight of the evidence (see, CPL 470.15 [5]).
Although the admission of the People’s surrebuttal evidence was error because it was elicited for the sole purpose of impeaching the credibility of the main defense witness with respect to a collateral issue (see, People v Orse, 91 AD2d 1003; People v Allen, 74 AD2d 640; People v Tufano, 69 AD2d 826), that error was harmless due to the overwhelming nature of the evidence (see, People v Crimmins, 36 NY2d 230). The complainant was definite about her identification of the defendant. That identification was based not only upon her lengthy observation of him during the robbery and attempted rape but also upon her observations of him on numerous prior occasions when she and her neighbor were leaving their apartment building in the mornings to go to work. Therefore, her identification was reliable. Moreover, the neighbor was able to corroborate the complainant’s identification of the defendant at trial by testifying that she also recognized the defendant from these prior occasions when she encountered him in their apartment building. In addition, the defendant’s expert’s findings on the issue of whether semen found on the complainant’s clothes was from a person with a blood type different from that of the defendant were unreliable and contradicted by the prosecution’s expert’s findings.
The defendant’s contentions concerning the trial court’s charge to the jury and the prosecutor’s summation have not been preserved for appellate review (CPL 470.05 [2]). In any event, we find these contentions to be entirely without merit.
Finally, the imposition of consecutive sentences for the convictions of attempted rape in the first degree and robbery in the second degree was entirely proper because the attempted rape was not a material element of the robbery offense and since it is apparent that these two offenses consti*768tuted separate acts (see, Penal Law § 70.25 [2]). The defendant dragged the complainant down stairs to effectuate his flight from the scene of the robbery and then he decided that he would attempt to violate her sexually when she was subdued and unable to protest. Clearly, these are two separate offenses which were properly punished separately (see, People v McMillan, 61 AD2d 800).
The remaining contentions raised by the defendant do not require reversal. Moflen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902644/ | by the defendant from five judgments of the Supreme Court, Kings County (Owens, J.), all rendered December 7, 1984, convicting him of robbery in the first degree (1 count under indictment No. 2153/83, 3 counts under indictment No. 2378/83, 5 counts under indictment No. 5393/84 and 1 count under indictment No. 5442/84), and criminal possession of stolen property in the first degree (under indictment No. 5455/84), upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606).
The claim raised in the defendant’s pro sé supplemental brief, that the presentence report was inadequate in that it contained little information concerning the defendant’s background (see, CPL 390.20 [1]), is both unpreserved and merit-less. No complaint concerning the adequacy of the report was raised before sentence was imposed. Moreover, any deficiency in the presentence report was due to the defendant’s refusal to speak to the probation officer who prepared the report. The defendant should not be heard to complain of an omission that was of his own making. Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6495495/ | NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARIA DEL CARMEN MARTINEZ- No. 21-35766
PATTERSON,
D.C. No. 2:18-cv-01180-RSM
Plaintiff-Appellant,
v. MEMORANDUM*
AT&T SERVICES, INC., a Delaware
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted June 6, 2022
Seattle, Washington
Before: GILMAN,** IKUTA, and MILLER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Maria del Carmen Martinez-Patterson appeals the district court’s grant of
summary judgment in favor of AT&T Services, Inc. (“AT&T”). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court properly granted AT&T’s motion for summary judgment
on Martinez-Patterson’s discrimination claims under 42 U.S.C. § 1981 and the
Washington Law Against Discrimination (WLAD).1 Martinez-Patterson failed to
identify direct evidence of discrimination on the basis of race, national origin, or
gender. See Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir.
2005). Martinez-Patterson provided indirect evidence of discrimination, namely
(1) an email chain erroneously stating that personnel selected for the force
reduction had already been notified, and (2) her general feeling (unsupported by
any specific examples) that men of Indian descent on her work team discriminated
against her, but this evidence was not sufficiently “specific and substantial” for
Martinez-Patterson’s discrimination claims to survive a motion for summary
judgment. Anthoine v. N. Central Counties Consortium, 605 F.3d 740, 754 (9th
Cir. 2010).
1
As relevant here, discrimination claims under both § 1981 and the WLAD
are reviewed under the same legal framework. See Weil v. Citizens Telecom Servs.
Co., LLC, 922 F.3d 993, 1002 (9th Cir. 2019).
2
Further, the district court properly granted AT&T’s motion for summary
judgment on Martinez-Patterson’s retaliation claims under § 1981 and the WLAD.2
Martinez-Patterson failed to establish a prima facie case of retaliation, because
there is no evidence showing a causal connection between her complaints about
alleged discrimination and her termination. See Surrell v. Cal. Water Serv. Co.,
518 F.3d 1097, 1108 (9th Cir. 2008). First, Martinez-Patterson’s subjective
perception—that Debbie Russo forbade Martinez-Patterson from complaining
about alleged discrimination—is contradicted by the record. Second, over three
years elapsed between Russo becoming aware of Martinez-Patterson’s complaints
in July 2013, and Martinez-Patterson being selected for termination in October
2016. This temporal gap was over twice as long as the 18-month temporal gap that
this Court previously determined to be “simply too long, by itself, to give rise to an
inference of causation” in the context of retaliation. Villiarimo v. Aloha Island Air,
Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). Moreover, to the extent Martinez-
Patterson alleges that John Rossi also retaliated against her in submitting the low
ratings that ultimately contributed to her termination, Rossi was aware of Martinez-
Patterson’s complaints even before Russo, and so the temporal gap is too great to
2
As relevant here, retaliation claims under both § 1981 and the WLAD are
reviewed under the same legal framework. See Surrell, 518 F.3d at 1108;
Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003).
3
raise an inference, by itself, that Rossi retaliated against Martinez-Patterson. Thus,
because Martinez-Patterson neither offered evidence of a retaliatory causal
connection, nor identified a suspicious temporal proximity between her complaints
and her termination, Martinez-Patterson’s retaliation claims cannot survive
summary judgment.
The district court also properly granted AT&T’s motion for summary
judgment on Martinez-Patterson’s claims under the Family and Medical Leave Act
(FMLA) and the Washington Family Leave Act (WFLA).3 None of Martinez-
Patterson’s FMLA/WFLA claims are colorable, and Martinez-Patterson failed to
establish a triable issue of fact capable of surviving summary judgment. See Xin
Liu v. Amway Corp., 347 F.3d 1125, 1132 (9th Cir. 2003). Even if Russo initially
misapprehended the scope of Martinez-Patterson’s leave options, Martinez-
Patterson failed to apprise Russo sufficiently of Martinez-Patterson’s alleged
special relationship with her brother, see 29 C.F.R. § 825.301(b), and an
informational “injury” does not give rise to an FMLA interference claim in any
case, see Olson v. U.S. ex rel. Dept. of Energy, 980 F.3d 1334, 1338 (9th Cir.
3
Claims under both the FMLA and the WFLA are reviewed under the same
rules and legal framework. See Espindola v. Apple King, 430 P.3d 663, 668
(Wash. Ct. App. 2018). Martinez-Patterson’s complaint was filed in 2018, prior to
the WFLA’s sunset on December 31, 2019.
4
2020). Moreover, AT&T’s policies requiring (1) that supervisors fill out FMLA
leave requests, and (2) that such requests be submitted at a certain time, are
consistent with Department of Labor regulations. See 29 C.F.R. § 825.302(d). We
acknowledge that Martinez-Patterson’s low performance ranking coincided with
the timeframe during which Martinez-Patterson communicated that she planned to
place an FMLA request, and that temporal proximity can be circumstantial
evidence of a connection between the exercise of FMLA rights and an adverse
employment action. See Xin Liu, 347 F.3d at 1137. But when the moving party
has otherwise carried its summary-judgment burden, “its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
AT&T demonstrated that Martinez-Patterson’s termination was part of department-
wide layoffs, and Martinez-Patterson’s supervisors affirmed that they did not
consider her FMLA request as a factor in her termination. Apart from temporal
proximity, Martinez-Patterson provided no evidence that her FMLA request
“constituted a negative factor in the decision to terminate her.” Bachelder v. Am.
W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). She therefore failed to
demonstrate a triable issue of fact as to whether her FMLA rights were violated.
5
Martinez-Patterson forfeited her claim of wrongful discharge in violation of
Washington public policy (which relies on the theory that Russo intended to
discriminate against Martinez-Patterson for requesting FMLA leave, and that Rossi
was a “cat’s paw” for Russo), because she did not properly present this argument
before the district court. Even if the argument had been properly presented, it fails
because an employer’s intent “is irrelevant to a determination of liability” with
respect to FMLA interference claims. Sanders v. City of Newport, 657 F.3d 772,
778 (9th Cir. 2011).
AFFIRMED.
6 | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826245/ | OPINION
FUTEY, Judge.
This action, arising out of a dispute over reimbursement under the Medicare Act, is before the court on defendant’s motion to dismiss and motion for summary judgment. Plaintiff, a medical doctor, alleges that defendant’s agent and administrator, Blue Cross and Blue Shield of Florida, has wrongfully withheld payments owed to him on Medicare (Part B) claims he has submitted for pathology work, applying the sums against an overpayment which was improperly and unconstitutionally determined by defendant. Defendant asserts that this court lacks jurisdiction because plaintiff has already been accorded an administrative hearing, in accordance with the Medicare Act, and there is no statute or regulation providing for judicial review of the determination resulting therefrom. Nor does plaintiff’s action, according to defendant, present a substantial constitutional claim entitled to a de novo review by this court. For the reasons stated hereinafter, the court grants defendant’s motion to dismiss the complaint.
FACTS
Medicare, enacted as Title XVIII of the Social Security Act in 1965, consists of two distinct components — hospital insurance benefits provided under Part A and supplementary medical services provided under Part B. 42 U.S.C. § 1395 et seq. It is the Part B program, involving benefits primarily for physicians’ services, which are the subject of this litigation.
For the administration of Part B, the Secretary of Health and Human Services (HHS) is authorized to act through “carriers,” private entities which perform various functions such as determining appropriate rates and amounts of payments, and making such payments. 42 U.S.C. § 1395 u. Blue Cross and Blue Shield of Florida is the carrier in the case at bar. If a Medicare beneficiary or a provider of services (physician) holding an assignment from the beneficiary is dissatisfied with the carrier’s determination of a claim for payment, the beneficiary/provider may request a de *534novo hearing before a Medicare Hearing Officer (MHO).
Plaintiff, Dr. Raul Romaguera, is a practicing physician in Lake Worth, Florida, who had a contract with Doctors Hospital of Lake Worth to provide clinical pathology services. Pursuant to the contract Dr. Ro-maguera sent bills for his services to Blue Cross and Blue Shield under Medicare Part B. In March 1982 the hospital gave Dr. Romaguera 120 days notice of its intent to terminate the contract. Plaintiffs contract was duly terminated in July 1982, and Dr. Romaguera was cut from the hospital’s medical staff. On November 15, 1982, however, Dr. Romaguera obtained a court order restoring him to the medical staff at Doctors Hospital.
Meanwhile, Doctors Hospital had contracted with another professional group in August 1982 to provide the services previously provided by Dr. Romaguera. Under the new arrangement, which involved a different mode of compensation for the physicians, the hospital was reimbursed by Blue Cross and Blue Shield under Medicare Part A. After his reinstatement Dr. Romagu-era obtained authorization from some of the physicians at Doctors Hospital to provide clinical and pathology services for his patients. He then proceeded to bill Blue Cross and Blue Shield in the old manner under Medicare Part B.
By letter dated January 31, 1984, Blue Cross and Blue Shield advised Dr. Romagu-era that “This situation constitutes duplicate billing on your part.” Since Doctors Hospital was already being paid for the clinical pathology services rendered to his patients, Dr. Romaguera was requested to “return the $18,266.68 paid to you in error” (between November 15, 1982 and October 1, 1983).
Exercising his right of review under 42 U.S.C. § 1395u(b)(3)(C); 42 C.F.R. § 405.801(a), Dr. Romaguera requested a “fair hearing” to review the carrier’s determination. This hearing was held on June 12, 1984, before a Medicare Hearing Officer (MHO). In a decision issued on July 3, 1984, the MHO affirmed the carrier’s determination that Dr. Romaguera should refund the amount of $18,266.68 to the Medicare Part B program.
By letter dated February 14, 1985, the Health Care Financing Administration of HHS demanded that Dr. Romaguera repay the $18,266.68, plus interest. Dr. Romagu-era refused, and on July 17, 1985, Blue Cross and Blue Shield of Florida began withholding payment on other claims submitted by Dr. Romaguera as a means to recoup the overpayment. By March 17, 1986, according to an affidavit of the Overpayment Recovery Specialist in the Health Care Financing Administration of HHS, $4,168.72 had been withheld, of which $3,310.35 had been applied against the overpayment principal and $858.37 against accrued interest.
Meanwhile, the United States filed suit in the U.S. District Court for the Southern District of Florida seeking a judgment against Dr. Romaguera for the amount of overpayment. Dr. Romaguera counterclaimed for $2,441.72, the amount the government had recouped at the time. On November 18, 1986, the U.S. Magistrate issued a Report and Recommendation concluding that the district court lacked jurisdiction to review overpayment determinations under Medicare Part B, but recommending that the case be transferred to the Court of Claims (sic) because defendant had alleged a constitutional claim based on denial of due process. Following this recommendation, the district court judge ordered the case transferred to the “Court of Claims” on December 9, 1986.
Dr. Romaguera filed an Amended Complaint in the U.S. Claims Court on January 28,1987, claiming that the determination of the Medicare Hearing Officer was constitutionally infirm due to “bias” and “prejudice” against plaintiff, and that the monies withheld by the government constituted a “taking and deprivation of property in violation of Plaintiff’s Due Process rights as guaranteed by the Fifth Amendment.” In a Second Amended Complaint filed on March 26, 1987, Dr. Romaguera also asserted that the MHO’s decision was unconstitutional because the MHO retroactively applied Medicare regulations which did not *535take effect until October 1, 1983. The government filed its motion to dismiss and motion for summary judgment on April 6, 1987.
DISCUSSION
In its Report and Recommendation to the district court, the U.S. Magistrate cited two federal appeals court opinions, Dr. John T. MacDonald Foundation, Inc., d/b/a Doctors’ Hospital, a Florida Corporation not for profit v. Joseph A. Califano, Jr., Secretary of Health, Education, and Welfare, Blue Cross Blue Shield, 571 F.2d 328 (5th Cir.1978) and United States of America v. Morton Sanet, M.D., 666 F.2d 1370 (11th Cir.1982), holding that the district court could not exercise judicial review of administrative determinations with respect to benefits payable under Medicare Part B. The issue before those courts was the scope of § 405(h) of the Social Security Act, incorporated by reference into the Medicare Act by 42 U.S.C. § 1395Ü, which provides that:
The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this sub-chapter. (Emphasis added.)1
While holding that the above section precluded district court review of the Secretary’s determinations on Medicare Part B claims, the courts in MacDonald and Sanet observed that the Court of Claims in Whitecliff, Inc. v. United States, 210 Ct.Cl. 53, 536 F.2d 347 (1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977), had decided that it was a proper forum for judicial review if such claims raised constitutional questions. MacDonald, 571 F.2d at 332; Sanet, 666 F.2d at 1374-75.
In Whitecliff, which involved a reimbursement dispute between the government and a Medicare provider, the Court of Claims held that, notwithstanding the limitations of § 405(h), supra,
a provider may obtain judicial review, under the general jurisdictional provisions which are applicable, at least so far as to ensure compliance with statutory and constitutional provisions. In this court, 28 U.S.C. § 1491 (the Tucker Act) is the pertinent jurisdictional provision both because of plaintiffs contract with the Government and also because the Medicare legislation, fairly read, mandates appropriate payment to providers. Cf. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).
Whitecliff, 210 Ct.Cl. at 58, 536 F.2d 347. Relying on this authority, and the fact that the appellants in MacDonald and Sanet both alleged constitutional claims based on due process violations, the 5th Circuit in MacDonald ordered that case transferred to the Court of Claims, while the 11th Circuit in Sanet observed that the appellant could bring an action in the Court of Claims upon his involuntary payment of the disputed sums. In the view of the U.S. Magistrate considering the district court case of United States v. Romaguera, CASE NO. 86-8Q48-CIV-PAINE, the above cases were controlling and, insofar as Dr. Romaguera had alleged a denial of substantive due process, militated in favor of a transfer of the case to the “Court of Claims.” The district court acted in accordance with this recommendation.
The transfer of this case here by the district court, of course, does not ipso facto confer jurisdiction upon the Claims Court. This court must make its own determination as to whether it has jurisdie*536tion over the action. Singleton v. United States, 6 Cl.Ct. 156,165 (1984); Aetna Casualty & Surety Co. v. United States, 228 Ct.Cl. 146, 151, 655 F.2d 1047 (1981).
Plaintiff asserts that jurisdiction rests with this court because his action (1) involves a Medicare Part B “entitlement” or “eligibility” dispute for which judicial review is authorized by statute (see Note 1, supra) and (2) raises a constitutional claim over which the court has traditionally exercised jurisdiction. Defendant argues that no jurisdiction lies in this court because plaintiffs action (1) seeks judicial review of a Medicare Part B “amount determination,” proscribed by statute (Note 1, supra ), and (2) raises no substantial constitutional claim.
The law is clear, and plaintiff does not disagree, that plaintiff would have no statutory right of judicial review if the decision rendered by the Medicare Hearing Officer is deemed to be simply an “amount determination.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 2140, 90 L.Ed.2d 623 (1986); United States v. Erika, Inc., 456 U.S. 201, 208, 102 S.Ct. 1650, 1654, 72 L.Ed.2d 12 (1982).2 Hence, plaintiff contends that his complaint actually “seeks a judicial review of his ‘eligibility’ or ‘entitlement’ to Medicare Part B reimbursement as recognized in U.S. v. Sanet.”3 Neither U.S. v. Sanet nor the case at bar, however, involves an “eligibility” or “entitlement” dispute within the meaning of Medicare’s judicial review clause, 42 U.S.C. § 1395ff. In U.S. v. Sanet the 11th Circuit stated unambiguously that “This is an action by the government seeking reimbursement of an overpayment4.... [a] dispute about amount [that] would be reconciled by administrative hearing [without judicial review].” (Emphasis added.) U.S. v. Sanet, 666 F.2d at 1375. Only the constitutional claims raised by the appellant offered an avenue of judicial review in the Court of Claims. The case at bar also originated in district court as an action by the government seeking reimbursement of a Medicare Part B overpayment which had been determined in an administrative hearing. The instant action, like U.S. v. Sanet, involves a “dispute about amount,” not “eligibility” or “entitlement,” and was transferred here by the district court only because of the constitutional claim(s) asserted by Dr. Romaguera. Accordingly, plaintiff has no statutory right to judicial review of his “fair hearing” determination.
* * * * * *
Plaintiff’s first constitutional claim is that the MHO’s decision violated his due process rights “in that the Officer was an employee of Blue Cross and Blue Shield which had already found against Plaintiff and the said Hearing Officer was prejudiced and biased against the Plaintiff in favor of the Carrier and Doctors Hospital.” 5 The Supreme Court was presented with the identical argument by Medicare Part B claimants in Schweiker v. McClure et al., 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982). In holding that the hearing procedures were not, in and of themselves, violative of due process requirements, the court stated as follows:
“We must start ... from the presumption that the hearing officers who decide Part B claims are unbiased.6 [Citations omitted.] This presumption can be rebutted by a showing of conflict of inter*537est or some other specific reason for disqualification. [Citations omitted.] But the burden of establishing a disqualifying interest rests on the party making the assertion.”
Schweiker v. McClure, 456 U.S. at 195-96, 102 S.Ct. at 1670. In the case at bar, plaintiff has offered no evidence of any bias or prejudice on the part of the Medicare Hearing Officer who heard and rendered the decision on his claim. Accordingly, this court rejects plaintiffs contention that the “fair hearing” procedure violated his due process rights.
Plaintiff presents another due process argument in his Second Amended Complaint to the effect that the MHO improperly applied Medicare regulations taking effect on October 1,1983, to reimbursement claims submitted by Dr. Romaguera prior to that date. Plaintiff does not further identify these regulations or their content in his pleadings, however, and has furnished no evidence whatsoever in support of the argument. The court therefore rejects this constitutional claim as totally unsubstantiated.
Plaintiff’s claim that the monies withheld by Blue Cross and Blue Shield, as the government’s agent, have been taken in violation of the Fifth Amendment is equally unpersuasive. As Dr. Romaguera was advised by Blue Cross and Blue Shield in an attachment to its letter of January 31, 1984, Medicare guidelines require carriers, in the event of overpayment to a physician which is not reimbursed, to offset the physician’s assigned Medicare Part B payments in an effort to recover the amount due. In particular, section 7100 of the Medicare Part “B” Intermediary Manual states that “once a Carrier determined an overpayment has been made, the amount so determined is a debt owed to the United States Government and the Carrier must attempt recovery.” (Emphasis added.) Moreover, the United States may bring suit directly under 28 U.S.C. § 1345 (as it did against Dr. Romaguera in federal district court) to collect on the debt (recoup the overpayment). Wilson Clinic & Hospital, Inc. v. Blue Cross of South Carolina, 494 F.2d 50 (4th Cir.1974); U.S. v. California Care Corp., 709 F.2d 1241 (9th Cir.1983). In this legal context, the withholding of Medicare Part B payments from plaintiff does not constitute a taking of private property without just compensation in violation of the Fifth Amendment. Rather, it represents a valid procedure by the government to recoup government funds improperly held by the plaintiff.
Plaintiff’s final argument is that a total bar to judicial review of Medicare Part B administrative determinations is ipso facto unconstitutional, so that jurisdiction in the Claims Court, in lieu of any alternative forum, is proper. This argument, however, has been clearly refuted by the Supreme Court in the previously discussed cases of Bowen v. Michigan Academy of Family Physicians, United States v. Erika, and Schweiker v. McClure, supra, which held that a bar to the judicial review of Medicare Part B amount determinations which did not raise substantial constitutional or statutory challenges is constitutional.
* # * * * *
For the reasons stated hereinabove, this court finds no merit in plaintiff’s claims that defendant failed to comply with applicable statutory and constitutional provisions in its administrative disposition of his Medicare Part B reimbursement dispute. Accordingly there is no legal basis for the court to grant judicial review under the Whitecliff rationale, page 535, supra.
CONCLUSION
The court concludes that it has no jurisdiction over this action, and directs the Clerk to dismiss the Complaint. No costs.
IT IS SO ORDERED.
. 42 U.S.C. § 1395ff of the Medicare Act does specifically provide for judicial review of determinations by the Secretary as to an individual’s eligibility for benefits under Parts A and B, as well as the amount of benefits under Part A. No such provision with respect to the amount of benefits under Part B existed prior to the enactment of the Omnibus Budget Reconciliation Act of 1986, which affords limited judicial review for items and services furnished after January 1, 1987. Pub.L. 99-509, Title IX, § 9341, 42 U.S.C. § 1399ff (1986).
. In Erika, the Supreme Court specifically reversed a Court of Claims ruling that it had jurisdiction over an action brought by a provider to contest a decision by the carrier respecting the amount of benefits payable under Medicare Part B.
. Plaintiffs Response to Defendant’s Motion to Dismiss and Defendant’s Motion for Summary Judgment, p. 4.
. “Overpayment’’ is defined in Section 7100 of the Medicare Part "B” Intermediary Manual, in pertinent part, as follows:
"... the term ‘Overpayment’ refers to an incorrect payment made under Title XVIII.... Overpayments may arise in various ways, such as ... [djuplicate processing of charges.”
. Plaintiffs Amended Complaint, p. 3.
. The court noted that MHOs are salaried by the federal government, not the carriers, that all Part B claims are paid from federal funds, not by the carriers, and that MHOs were obligated to comply with the provisions of the Medicare Act and regulations issued thereunder. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129360/ | Barnard, P. JT.:
When the commissioners gave their consent to the construction of the defendant’s road in the town of New Utrecht, upon the highways, their duty was done. After that they could require the restoration of the streets to their former usefulness. It was no part of their duty, and was not within t'heir power to make it obligatory upon the railroad company to always keep their road upon the highway. If the defendant’s company take up the track and restore the road, it is all which the plaintiffs as commissioners can enforce. If the consent of the land-owners was upon a condition, they must *92enforce it. The plaintiffs are limited to tbe rights of the public to the highway and to the enforcement of the duties of the railroad company to the highway. (Chap. 255, Laws 1855.) If the act proposed by defendants is accomplished it,will discontinue a part of the railroad and entirely relieve the highway from it, and if the highway is properly restored the plaintiffs will be put back where they were before the consent was originally given. A consent to a railroad in the street with either steam or horse-power, carries with it the right to connect passenger stations or depot yards or stables with the street railroad. A bill in equity may be the proper remedy for an improper or dangerous method in carrying out the plans. A preliminary injunction should not be issued to restrain the connection on- a general averment that it will be dangerous.
The commissioners have power to see that the rights of the people to the highway are preserved, and the company are to grade the road under the direction of the commissioners. (Chap. 11, Laws of 1854, § 2.)
The order dissolving the injunction should be affirmed, with costs.
Dtkman and Pratt, JJ., concurred.
Order vacating injunction affirmed, with costs. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1714701/ | 339 Mich. 339 (1954)
63 N.W.2d 417
In re FORD'S ESTATE.
BRYANT
v.
FORD.
Calendar Nos. 46,027, 46,028.
Supreme Court of Michigan.
Decided April 5, 1954.
Rehearing denied June 7, 1954.
Edward N. Barnard, for plaintiff.
Bodman, Longley, Bogle, Armstrong & Dahling (Clifford B. Longley and Henry C. Bogle, of counsel), for defendant executors.
DETHMERS, J.
Plaintiff filed a claim in this estate for $30,000,000, supported by a bill of particulars which alleged that he had performed services for decedent's husband for which the latter had promised but failed to compensate him, and that in consideration of his promise, performed by him, to refrain from importuning or negotiating with the husband concerning this and other matters and to continue his care, interest and advice to her, decedent promised, but failed, to leave her entire estate to him. The probate court appointed 2 referees to hear the claim. Two days later defendants moved *342 that plaintiff be required to furnish security for costs, alleging, in their motion and supporting affidavit, as grounds, the "extraordinary character and amount of this claim," "the large amount of costs that may accrue in connection therewith," and that "Claimant has failed to show that his claim is meritorious or that it is made in good faith." Plaintiff filed no answer. After hearing the probate court ordered plaintiff to furnish security for costs in the amount of $30,000. Upon leave granted plaintiff appealed to the circuit court. There he adduced proofs to show that security had been denied in many estates in the same probate court and that, when required, it had been for amounts varying from $100 to $1,000, but the valuations of none of those estates or of the claims involved were comparable to this and in some no referees had been appointed. Defendants showed, from the files of the probate court, that, in a recently probated estate involving claims totalling $2,000,000 and claimants represented by the same counsel as here, 2 referees were appointed and thereafter allowed fees of $20,000 each. After hearing the appeal herein the circuit court entered an order vacating the order of the probate court and remanding the cause but "reserving the right to the executor of the estate, on a proper showing before the court, to demand a bond based upon the facts and necessities of the case, to determine the amount of the bond that is necessary to protect the estate."
Plaintiff and defendants have taken separate appeals from the circuit court's order. We consider them together. Plaintiff complains of that portion of the order remanding the matter to the probate court and reserving to it the right to make further determination concerning a bond for security for costs. He seeks reversal thereof and entry of an order here or in the circuit court either denying defendants' motion, or, in the alternative, requiring *343 plaintiff to furnish security in an amount not to exceed $200 to cover witness and statutory attorney fees only, but not referees' fees. Defendants, on the other hand, seek reversal of the circuit court order and affirmance of that of the probate court.
The primary legal question presented is whether it is competent for a probate court to require a resident claimant, whose claim is not tardy, to furnish security for costs including compensation of referees. Applicable sections of the Compiled Laws of 1948 are:
"708.4 Costs, allowance of upon contested claim; attorney fee.
"Sec. 4. Costs in the discretion of the probate court may be allowed the prevailing party in connection with any contested claim, which costs, if so allowed by the court, shall include witness fees, except for the claimant and the fiduciary if they appear as witnesses, taxed at the same rate as in cases in circuit court, and the fees of the referee, if any shall be included, and the court in its discretion may allow the prevailing party an attorney fee of not exceeding $25.00 in connection with any 1 claim.
"708.5 Security for costs, furnishing of, by claimants; procedure.
"Sec. 5. On motion of the fiduciary, all claimants who are nonresidents of the State of Michigan shall be, and all other claimants, when it shall appear reasonable and proper to the court, may be required to furnish sufficient surety or sureties, to be approved by the court, and who shall justify in double the amount of security ordered, for all such costs as may be awarded to the fiduciary, and such sureties shall be liable for all costs awarded either in the court of original jurisdiction, or in any appellate court: Provided, That in case any claimant except a nonresident of the State shall show the court that he is unable to comply with such order, if the court shall be satisfied that the claimant states a meritorious claim, and that the claim is made in good faith, *344 the claimant shall be allowed to proceed in such action without giving security for costs.
"708.6 Referees serve at pleasure of appointing judge; fees.
"Sec. 6. No referee so appointed shall receive any fee or perquisite other than as herein provided. Any referee, so appointed, shall serve at the pleasure of the probate judge making such appointment. He shall receive from each estate, the claims against which are assigned to him for hearing, such reasonable compensation as the judge of probate shall determine: Provided, however, That in any such county in which the board of supervisors may provide an annual or monthly salary for such referee or referees, no charge shall be made against any such estate for the services of such referee.
(Note: No provision has been made in Wayne county for any salary for such referees.)
"708.18 Filing of tardy claims; application; costs; notice to fiduciary.
"Sec. 18. On the application of a creditor who has failed to present his claim, if made within 18 months following the time originally fixed by the court for the presentation of claims, and before such estate is closed, the judge of probate shall allow further time, not exceeding 1 month, for such creditor to present his claim, which claim may then be heard by the court or referred to a referee as hereinbefore provided: Provided, That all costs and charges resulting from said application and the proceedings thereon had in probate court, or before the referee shall be paid by the party making the application."[*]
Construing these statutory provisions, plaintiff reasons that security may be required, under section 5, only "for all such costs as may be awarded to the fiduciary"; that, under section 6, referees may receive fees only from the estate and not from a claimant; that it is only in the case of a tardy claim that *345 a prevailing estate may recover referees' fees from a claimant, as provided in section 18; that, under section 4, a prevailing estate may be allowed costs to cover referees' fees only "if any"; and that there is no statutory authorization for "any" except in the case of tardy claims under section 18, so that the term "if any" in section 4 must be considered to refer exclusively to cases of tardy claims. We think plaintiff's reasoning fallacious.
The plain, unambiguous language of section 4 authorizes the probate court, in its discretion, to allow costs to "the prevailing party in connection with any contested claim, * * * and the fees of the referee, if any shall be included." While section 6 entitles the referee to receive his fee from the estate, that provision is merely for his protection and in no sense a bar to the right of the estate, after payment of such fee by it to the referee, to recover the same from the losing claimant, as provided in section 4, in cases where the estate prevails. Section 4 cannot be read to mean anything else than that. The provision of section 18 that a claimant filing a tardy claim shall pay all costs resulting from his application and the proceedings thereon operates, beyond the provisions of section 4 making the losing party liable for costs, to make a tardy claimant liable for the costs, including the referees' fees, even when he prevails. So held in In re Booth's Estate, 326 Mich. 337. Section 18 in nowise modifies the provisions of section 4 permitting the probate court to allow costs to a prevailing party, including referees' fees, regardless of whether the claim was tardily filed or not. It follows that referees' fees, being allowable to a prevailing estate against a losing claimant, are, in the language of section 5, "such costs as may be awarded to the fiduciary" and, hence, may be included within the costs for payment of which the probate court is authorized, under that section, to *346 require claimant to furnish security. While the provisions of section 5 are mandatory only in cases of nonresident claimants, they expressly permit the court to require furnishing of security for costs by resident claimants "when it shall appear reasonable and proper to the court."
Holding, as we do, that the statute empowers the probate court to make such order, in its discretion, when it shall appear reasonable and proper to that court to do so, the question remains whether, as relates to this resident claimant and this particular case, the court was correct in exercising that authority and in fixing the bond in so large an amount. In that connection the parties discuss the subsidiary question of whether the appeal from probate to circuit court was a general appeal, to be heard de novo and decided on the record made in circuit court, with the burden of proof on defendants to show that an order for security for costs was reasonable and proper under the facts of the case, or, on the other hand, whether the appeal was one in the nature of certiorari or mandamus, limited to a determination of the probate court's abuse of discretion, to be based on the record made in the probate court, with the burden of proof in that regard resting on plaintiff. We do not consider an answer essential to decision here. Goodenough v. Burton, 146 Mich. 50; and Balahoski v. Kent Circuit Judge, 243 Mich. 70, laid down the rule that, "This Court will not review the discretion of the circuit judge who makes or denies an order for security for costs." The statute reposes a like discretion in the probate court with respect to orders for security for costs. We conclude that the same rule ought to be held to apply in appeals from such orders of the probate court. Under such rule our inquiry, and that of the circuit court, is directed solely to the question of the probate court's abuse of discretion. The unanswered allegations of *347 defendants' motion and supporting affidavit regarding plaintiff's claim, the files of this case containing that claim, and the files in other cases in that court (of which it might properly take judicial notice Wilkinson v. Conaty, 65 Mich. 614; People v. Fleisher, 322 Mich. 474), disclosing the extent to which costs may reasonably be expected to mount in proceedings such as this, afforded ample basis for the probate court's exercise of its discretion and its finding that it appeared to be reasonable and proper, as provided in section 5 of the statute, to require security for costs in the amount ordered. That record and, as well, the record made in circuit court, should have been persuasive to the latter, as it is to us, of the applicability here of the rule in Goodenough and Balahoski.
There is nothing in section 5 of the statute or elsewhere to support plaintiff's contention that a showing by defendants of plaintiff's financial irresponsibility is prerequisite to the exercise of the authority which said section confers upon the probate court to require security for costs. Slanting in the opposite direction is Buckley v. Johns, How NP 64 (Wayne CC 1868), holding that a resident plaintiff ought not to be compelled to file security for costs simply because he is poor. To alleviate such hardship as might result from our holding herein to a resident claimant section 5 provides that in case he "shall show the court that he is unable to comply with such order, if the court shall be satisfied that the claimant states a meritorious claim, and that the claim is made in good faith, the claimant shall be allowed to proceed in such action without giving security for costs." Plaintiff attempted no such showing here. His claim that defendants waived their right to security for costs by failing to make a timely motion therefor is raised for the first time in his brief on appeal here and, accordingly, is not *348 entitled to be considered now, nor is it meritorious inasmuch as defendants' motion was filed within 2 days after the appointment of referees whose prospective fees form the main bone of contention here.
In view of our holding, as above, plaintiff's motion to dismiss defendants' appeal is, for obvious reasons, denied.
The order of the circuit court is reversed and that of the probate court affirmed, with costs to defendants.
BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.
NOTES
[*] Stat Ann 1943 Rev §§ 27.3178(414)-27.3178(416), 27.3178(428). REPORTER. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4568047/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1757
NOE EVANGELISTO RUIZ REYES,
Petitioner,
v.
WILLIAM P. BARR, Attorney General for the United States,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: June 2, 2020 Decided: August 6, 2020
Before GREGORY, Chief Judge, HARRIS and RICHARDSON, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Buxton Reed Bailey, BUXTON R. BAILEY, P.C., Raleigh, North Carolina, for Petitioner.
Joseph H. Hunt, Assistant Attorney General, Derek C. Julius, Assistant Director, Karen L.
Melnick, Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Noe Evangelisto Ruiz Reyes, a native and citizen of Honduras, petitions for review
of an order of the Board of Immigration Appeals (Board) denying his motion to reopen.
We have reviewed the administrative record and the Board’s order and find no abuse of
discretion. * See 8 C.F.R. § 1003.2(a), (c)(1) (2020). Accordingly, although we grant leave
to proceed in forma pauperis, we deny the petition for review for the reasons stated by the
Board. See In re Ruiz Reyes (B.I.A. June 26, 2019). We deny the Attorney General’s
motion for summary affirmance as moot and dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DENIED
*
Ruiz Reyes claims that the Board violated its case management plan because his
motion to reopen was decided by a single Board member rather than the original
three-member panel, depriving him of due process. This claim is unavailing because Ruiz
Reyes fails to show any prejudice resulting from the alleged defect. See Anim v. Mukasey,
535 F.3d 243, 256 (4th Cir. 2008); accord Rusu v. INS, 296 F.3d 316, 320-22 (4th Cir.
2002). Moreover, the claim is not cognizable because denials of discretionary relief,
including cancellation of removal, cannot give rise to a due process claim. See Aparicio-
Brito v. Lynch, 824 F.3d 674, 684 (7th Cir. 2016) (cancellation of removal is “a form of
discretionary relief in which there is no liberty interest at stake” (internal quotation marks
omitted)); see also Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006) (stating that
“[n]o property or liberty interest can exist when the relief sought is discretionary”),
abrogated on other grounds by Dada v. Mukasey, 554 U.S. 1 (2008); Smith v. Ashcroft,
295 F.3d 425, 429-30 (4th Cir. 2002) (holding that alien’s lack of a “protected liberty or
property interest” in the relief sought—there, a discretionary waiver of deportation—was
“a circumstance fatal to his due process claim”).
2 | 01-03-2023 | 09-22-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902646/ | Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 9, 2011, which granted defendant City of New York’s motion for summary judgment dismissing the complaint and all cross claims as against it, and denied plaintiffs’ cross motion to strike the City’s answer, unanimously affirmed, without costs.
The documentation of various complaints made to the Department of Environmental Protection and repairs made by the Department of Transportation do not constitute “written acknowledgment” of the alleged sinkhole condition that caused plaintiff David Hogin’s fall (Administrative Code of City of NY § 7-201 [c] [2]; see Bruni v City of New York, 2 NY3d 319 [2004]). *420Only one of the documents refers to a sinkhole, but that document does not demonstrate that the City “had knowledge of the condition and the danger it presented” (Bruni at 326-327). Indeed, it states that the inspectors found no such condition. Moreover, the record is devoid of evidence that the City caused or created the condition by an affirmative act of negligence (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Rosenblum v City of New York, 89 AD3d 439 [1st Dept 2011]).
Supreme Court also properly denied plaintiffs’ cross motion. Although the City was recalcitrant or tardy with respect to complying with certain discovery directives, striking its answer would have been too severe a sanction under the circumstances (see e.g. Frye v City of New York, 228 AD2d 182, 182-183 [1st Dept 1996]). Moreover, the documents and testimony plaintiffs sought would not overcome their inability to demonstrate prior written notice or acknowledgment, nor would it show that the City caused or created the condition (see Flores v Cathedral Props. LLC, 101 AD3d 432 [1st Dept 2012]).
We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. [Prior Case History: 2011 NY Slip Op 32974(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902647/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Deeley, J.), rendered April 14, 1986, convicting him of robbery in the second degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s contentions challenging the trial court’s charge to the jury have not been preserved for appellate review (see, CPL 470.05 [2]; People v Harrell, 59 NY2d 620, 622) and we decline to review them in the interest of justice.
Further, we find that the trial court properly imposed a mandatory felony surcharge upon the defendant in accordance with Penal Law § 60.35 (see, People v Williams, 131 AD2d 525, lv denied 70 NY2d 718). "If, at the conclusion of his imprisonment, the defendant finds himself unable to pay the surcharge, he may move at that time for a waiver thereof’ (People v Williams, supra, at 525; People v West, 124 Misc 2d *769622). Lawrence, J. P., Kunzeman, Keeper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902648/ | Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 9, 2011, which granted defendant City of New York’s motion for summary judgment dismissing the complaint and all cross claims as against it, and denied plaintiffs’ cross motion to strike the City’s answer, unanimously affirmed, without costs.
The documentation of various complaints made to the Department of Environmental Protection and repairs made by the Department of Transportation do not constitute “written acknowledgment” of the alleged sinkhole condition that caused plaintiff David Hogin’s fall (Administrative Code of City of NY § 7-201 [c] [2]; see Bruni v City of New York, 2 NY3d 319 [2004]). *420Only one of the documents refers to a sinkhole, but that document does not demonstrate that the City “had knowledge of the condition and the danger it presented” (Bruni at 326-327). Indeed, it states that the inspectors found no such condition. Moreover, the record is devoid of evidence that the City caused or created the condition by an affirmative act of negligence (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Rosenblum v City of New York, 89 AD3d 439 [1st Dept 2011]).
Supreme Court also properly denied plaintiffs’ cross motion. Although the City was recalcitrant or tardy with respect to complying with certain discovery directives, striking its answer would have been too severe a sanction under the circumstances (see e.g. Frye v City of New York, 228 AD2d 182, 182-183 [1st Dept 1996]). Moreover, the documents and testimony plaintiffs sought would not overcome their inability to demonstrate prior written notice or acknowledgment, nor would it show that the City caused or created the condition (see Flores v Cathedral Props. LLC, 101 AD3d 432 [1st Dept 2012]).
We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. [Prior Case History: 2011 NY Slip Op 32974(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902649/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered July 19, 1983, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8076479/ | No opinion. Motion granted, | 01-03-2023 | 09-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8076480/ | No opinion. i\lotion granted. | 01-03-2023 | 09-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902652/ | Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 21, 2009, which, insofar as appealed from, denied the motion of defendant Franco E Cerabona, M.D. for summary judgment dismissing the cause of action alleging medical malpractice as against him, unanimously affirmed, without costs.
The record presents triable issues of fact as to whether defend*421ant physician committed malpractice by performing spinal surgery on plaintiff’s decedent. In response to the evidence submitted by defendant showing that the surgery was appropriately performed, plaintiff submitted an affidavit from an expert stating that defendant departed from good and accepted medical practice by performing the spinal fusion surgery that was contraindicated for the decedent and that such departure was a proximate cause of the decedent’s injuries. Plaintiff’s expert reviewed the decedent’s medical records and films and detected no evidence of spinal instability. The expert further noted the numerous risk factors involved with the decedent undergoing the surgery and concluded that it was likely to fail. Such conflicting evidence warranted the denial of summary judgment in defendant’s favor since “[Resolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury” (Frye v Montefiore Med. Ctr, 70 AD3d 15, 25 [1st Dept 2009]). Concur— Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534710/ | IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 119,911
STATE OF KANSAS,
Appellee,
v.
WILLIE E. MORRIS,
Appellant.
SYLLABUS BY THE COURT
1.
A defendant is entitled to a voluntary intoxication instruction when the evidence,
viewed in the light most favorable to the defendant, shows the defendant was intoxicated
to a degree that he or she could not form the necessary intent.
2.
Evidence showing only that a defendant consumed alcohol or drugs, or that the
defendant was high or intoxicated at the time of the crime, does not support an inference
that the defendant was so intoxicated that he or she could not form the necessary intent.
3.
K.S.A. 60-404 generally precludes an appellate court from reviewing an
evidentiary challenge absent a timely and specific objection made on the record.
1
4.
In a criminal case, the State has the burden to prove all the elements of the crime
charged. Photographs used to prove the elements of the crime, including the manner of
death and violent nature of the crime, are relevant and admissible.
5.
Cumulative evidence is evidence of the same kind to the same point. Whether
evidence is cumulative should be determined from its kind and character, instead of its
effect.
6.
In a cumulative error analysis, an appellate court considers all errors collectively
and, even though those errors would individually be considered harmless, analyzes
whether their cumulative effect on the trial's outcome is such that they cannot be deemed
harmless.
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed May 15, 2020.
Affirmed.
Kristen B. Patty, of Kansas Appellate Defender Office, was on the brief for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: Willie Earl Morris was one of several codefendants involved in the
kidnapping and murder of Scott Goodpaster Jr., after a drug deal gone awry. A jury
2
convicted Morris of both first-degree premeditated murder and the alternative charge of
first-degree felony murder, aggravated kidnapping, aggravated battery, and conspiracy to
commit distribution of a controlled substance. Morris appeals his convictions alleging
three trial errors: (1) the district court erred in denying his request for a jury instruction
on voluntary intoxication; (2) the court erred in admitting gruesome photographs of
Goodpaster's body; and (3) cumulative error denied him a fair trial. We find no error and
affirm Morris' convictions.
FACTS
Morris, Goodpaster, Brian Bussart, Heidi Hillard, and Heidi's husband, Jeff
Hillard, all became acquainted through using and dealing methamphetamine. Shortly
before Goodpaster's murder, Heidi had given Goodpaster $600 to buy an ounce of
methamphetamine. Heidi was arrested and jailed before the deal was completed. After
bonding out of jail, she wanted either her money or the methamphetamine from
Goodpaster. She did not receive either.
Despite the tension that arose as result of the previous failed drug buy, the Hillards
arranged another deal with Goodpaster and his girlfriend, Samantha Sperber. On the
morning of Saturday, November 5, 2016, the Hillards gave Goodpaster about $180.
Bussart then dropped Goodpaster off at a hotel. Goodpaster used some of the money to
rent a room for himself and Sperber. He gave the rest of the money to Sperber's brother,
who was supposed to go trade a gun, along with the money, for an ounce of
methamphetamine.
The Hillards called Goodpaster several times during the day, but he told them he
had not heard from Sperber's brother yet. Later that night, Heidi and Jeff met Bussart and
3
Morris, and they went to Goodpaster's hotel room to check on the deal. When they
arrived, both Goodpaster and Sperber were asleep. After gaining access to the room, they
woke up the sleeping couple and questioned them for nearly an hour. Morris stood in
front of the door during the questioning.
Someone eventually got in touch with Sperber's brother, and he reported he had
been arrested. Heidi became angry, believing Goodpaster and Sperber had stolen her
money. The Hillards then decided everyone should go back to their house. Goodpaster
left with Bussart and Morris in a truck. Sperber left with Heidi and Jeff in another car.
Bussart, Morris, and Goodpaster arrived at the Hillards' house around 4 a.m. They
all smoked methamphetamine in the truck. They then went inside the house and waited
for the Hillards and Sperber. The Hillards, on the other hand, spent the next couple of
hours driving around and questioning Sperber. Sperber eventually made up a story about
Goodpaster planning to get the Hillards arrested or robbed. Heidi became concerned she
might lose custody of her two young daughters if she were arrested again.
The Hillards and Sperber arrived at the house around 6:30 a.m. The Hillards took
Sperber into a shed on their property. Bussart went out to the shed, and Heidi told him
that Goodpaster and Sperber had a plan to get her in trouble with the police and DCF
(Kansas Department for Children and Families). Bussart went back into the house to get
Goodpaster. Morris followed the two of them back out to the shed.
Over the next several hours, Heidi, with the help of Jeff and Morris, interrogated
and tortured Goodpaster, apparently seeking information about the alleged set up. During
the interrogation, Morris and Jeff struck Goodpaster in the head with their hands or fists.
Heidi tased Goodpaster and hit his knee with a baseball bat. She stuck wooden cuticle
4
sticks into his ears and cut one of his ears with a knife. She cut open his shorts and
underwear, threatening to cut his testicles. At one point, Jeff and Morris held Goodpaster
down while Heidi tried to staple his eyes and mouth shut. Sperber testified she saw
Morris hit Goodpaster's knee with the spray gun and the flat end of an ax during the
interrogation in the shed. She also saw Jeff and Morris each holding one end of an
extension cord and using it to choke Goodpaster.
Goodpaster tried to escape from his tormentors several times. The first time he
tried to escape, Bussart caught him before he made it out of the shed. The second time he
made it just outside the door before Bussart, Morris, and Jeff caught him and brought him
back inside. Goodpaster was then ziptied to a chair.
Later, Bussart left to change clothes and then returned to the shed during
Goodpaster's interrogation. Around 10 a.m. he left again to go get cigarettes. While
Bussart was gone, Goodpaster made another escape attempt. He jumped through a closed
window, shattering glass and cutting himself before being pulled back into the shed.
Goodpaster made a final escape attempt shortly before Bussart returned, but Jeff and
Morris tackled and restrained him.
When Bussart pulled into the driveway on his return, everybody was outside. Jeff
and Morris were holding Goodpaster down on the ground. Morris brought some tape
outside, and they taped Goodpaster's mouth shut. Jeff got a rope, and Bussart put it
around Goodpaster's feet. Morris, Bussart, and Jeff then used the rope to pull Goodpaster
into the backseat of the truck. Goodpaster tried to use his feet to resist being pulled in the
truck but was unsuccessful. Jeff then got in the driver's seat, Bussart got in the passenger
seat, and Morris got in the backseat with Goodpaster.
5
When Goodpaster made his final escape attempt, it caught the attention of Jeff's
mother, who lived next door. She saw Jeff holding someone down on the ground. She
also saw a man come from the Hillards' shed. A truck then pulled up, a man got out, and
three men appeared to load someone into the truck. After the truck left, she called 911
because she thought someone was getting hurt.
After leaving the house, Jeff first drove to the home of his former brother-in-law,
Craig Bright. Jeff asked to stash something at Bright's house and said Bright did not need
to know what it was. Jeff's arms were covered in blood. Bright asked what was going on,
and Jeff said, "It's for the girls." Bright saw someone or something slumped in the truck's
backseat. Bright said Jeff could not stash anything there, and he needed to leave. Bright
also gave them some paper towels and cleaner, hoping it would speed up their departure.
After Jeff left, Bright called 911 because he thought there might be a body in the truck.
Jeff then drove Bussart, Morris, and Goodpaster to the town of Sedgwick. They
stopped to get gas and some drinks before driving out to the country to find a place to
dispose of Goodpaster. They eventually found an open gate and drove through a field
until they reached the tree line. Jeff, Bussart, and Morris used the rope to drag
Goodpaster to a creek area. Jeff told Bussart to tie the rope around Goodpaster's neck.
Jeff then tossed the rope over a tree and pulled Goodpaster's body up. Morris was already
back at the truck by the time Jeff finished hanging Goodpaster's body.
Jeff, Bussart, and Morris cleaned themselves off with the cleaner and paper towels
Bright had given them. They went to a car wash to wash out the truck. Finally, they
stopped at Wal-Mart to get some new clothes.
6
Law enforcement was dispatched to the Hillards' home in response to the 911
calls. There, they found Heidi, Sperber, and Heidi's two daughters inside the house. They
also found the bloody scene in and around the shed on the Hillards' property. Later that
evening, Jeff returned while law enforcement was still at his home. Morris was arrested
several days later, still wearing the new jeans he had bought at Wal-Mart.
Law enforcement discovered Goodpaster's body on Saturday, November 12, 2016.
He was hanging from a tree in a creek ravine in Harvey County. His body was covered in
superficial skin injuries, including abrasions, contusions, lacerations, and puncture
wounds. After an autopsy, a forensic pathologist ruled Goodpaster's death was due to
asphyxiation by hanging. The pathologist later testified Goodpaster could have possibly
died of positional asphyxiation while he was in the back of the truck. Goodpaster also had
a potentially toxic amount of methamphetamine in his system, but the pathologist did not
believe this was the cause of Goodpaster's death given all the circumstances.
The State ultimately charged Morris with first-degree premeditated murder or, in
the alternative, first-degree felony murder, aggravated kidnapping, aggravated battery,
and conspiracy to distribute a controlled substance. In addition, it also prosecuted Morris
under an aiding and abetting theory of criminal responsibility.
At trial, Bussart, Sperber, and other witnesses testified consistent with the previous
recitation of facts. Bussart also testified he spent most of the day on November 5, 2016,
with Morris, and Morris was aware of the drug deal with Goodpaster. Bussart believed
Goodpaster died in the truck shortly after they left the Hillards' because he did not hear
any sounds from Goodpaster after that.
7
In addition to witness testimony, video footage from the Hillards' security
surveillance system, and numerous photographs, the State also introduced several
recordings Heidi had made with a cell phone. These recordings included an 82-minute
audio recording of the interrogation and torture of Goodpaster. On that recording, Morris
could be heard occasionally asking Goodpaster questions or ordering Goodpaster to
provide answers, sometimes followed by a slapping sound. At one point, Heidi said, "I'm
gonna have to get the fuckin' gun," followed by Morris ordering Goodpaster to "stay
there motherfucker!" Another time Heidi said, "Earl, it's your call," followed by a loud
smacking sound. Morris also told Goodpaster, "We gonna get rid of your ass!" Heidi and
Jeff made similarly threatening statements, such as: "Cause you see you know that three
people can keep a secret as long as two are dead?", "[I] don't wanna kill him yet we need
him to talk still," and "Either way you [sic] a dead motherfucker."
Morris testified in his own defense. He said he was drunk or high the whole time
Goodpaster was being tortured. He said he had had four or five 24-ounce beers and "was
doin' a little drugs" on November 5, 2016. He had also smoked methamphetamine in the
truck outside the Hillards' home in the early morning hours of November 6, 2016. He also
said he had been up for about four or five days. When asked, "Were you thinkin'
straight?" he responded, "Man, my mind was gone, shot."
Morris testified he did not pay much attention to what was going on while he was
in the shed because he was trying to untie a gold chain that Heidi had given him to
untangle. He denied restraining anyone or preventing anyone from leaving. He admitted
that he, Jeff, and Heidi were talking like they were going to kill Goodpaster, but he
thought Heidi was joking about it. He claimed he hit Goodpaster's head only once. He
said he was just encouraging Goodpaster to answer Heidi's questions, so Heidi would
leave Goodpaster alone.
8
Morris also testified Jeff asked him to go get some tape after Goodpaster's last
escape attempt. He said he thought Jeff was going to use it to bandage Goodpaster's
wounds. Morris said Bussart and Jeff were the ones who pulled Goodpaster into the
truck. He said he asked Jeff to take him home after they left the Hillards' house, but Jeff
said they were going to drop Goodpaster off first. Morris believed Goodpaster was still
alive when Jeff and Bussart dragged him to the creek area. He said he could not see what
they were doing, and he did not know what was going on.
The jury convicted Morris on all counts, including both alternative theories of
first-degree murder. The district court sentenced Morris to life in prison without the
possibility of parole for 50 years for first-degree premeditated murder, plus a total of 280
consecutive months for the other counts. Morris appeals.
ANALYSIS
Voluntary Intoxication Instruction
The first issue on appeal is whether the district court erred in denying Morris'
request for a jury instruction on voluntary intoxication. At the jury instruction conference,
Morris requested several jury instructions on voluntary intoxication based on PIK Crim.
4th 52.050, 52.060, and 52.070 (2018 Supp.). The State opposed Morris' request, arguing
Morris had presented evidence of consumption only, and no evidence suggested he was
so intoxicated he lacked the ability to form an intent. The district court denied Morris'
request, holding the evidence was "not anywhere near what is needed in order to justify a
voluntary intoxication" instruction.
9
This court follows a four-step process when reviewing jury instruction issues.
First, we consider the reviewability of the issue from both jurisdiction and preservation
viewpoints, exercising an unlimited standard of review. Second, we use unlimited review
to determine whether the instruction was legally appropriate. Third, we determine
whether the evidence, when viewed in the light most favorable to the defendant or
requesting party, was sufficient to warrant the instruction. Finally, if the district court
erred, we determine whether the error was harmless, using the test and degree of certainty
set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221
(2012). State v. Murrin, 309 Kan. 385, 391, 435 P.3d 1126 (2019).
Morris requested a voluntary intoxication instruction, so he has preserved this
issue for review. And, voluntary intoxication was an available defense based on Morris'
charges. Voluntary intoxication may be a defense to any crime that requires a specific
intent. See K.S.A. 2016 Supp. 21-5205(b); Murrin, 309 Kan. at 397. Both parties focus
on Morris' conviction for first-degree premeditated murder, which is a specific intent
crime. State v. Mattox, 305 Kan. 1015, 1025, 390 P.3d 514 (2017). The State also
prosecuted Morris under an aiding and abetting theory of criminal responsibility. In such
cases, voluntary intoxication may be a defense to show a defendant was incapable of
forming the intent to aid the commission of a crime. See PIK Crim. 4th 52.050 (2018
Supp.). And under an aiding and abetting theory, the State still had to prove Morris had
the specific intent of premeditation to secure a conviction. State v. Soto, 301 Kan. 969,
Syl. ¶ 12, 349 P.3d 1256 (2015).
Even though voluntary intoxication was a legally available defense to Morris' first-
degree premeditated murder charge and conviction, the district court would only have
been required to give the instruction if it was factually appropriate. Generally, a
defendant is entitled to instructions on the law applicable to his or her defense theory if
10
there is sufficient evidence, when viewed in the light most favorable to the defendant, for
a rational fact-finder to find for the defendant on that theory. Murrin, 309 Kan. at 391. As
for a voluntary intoxication instruction, the evidence would need to show the defendant
was intoxicated to a degree that would impair his or her ability to form the requisite
intent. Such an instruction may be appropriate if the evidence shows the defendant was so
intoxicated he or she could not reason, remember, plan, or exercise motor skills. State v.
Reed, 302 Kan. 390, 400, 352 P.3d 1043 (2015). But "evidence that a defendant has
consumed alcohol or drugs, or that a defendant is 'high' or 'intoxicated,' does not permit
an inference that the defendant was so impaired that he or she was unable to form the
requisite intent." State v. Kidd, 293 Kan. 591, 595, 265 P.3d 1165 (2011).
The evidence at trial was enough to allow a rational fact-finder to conclude Morris
had consumed drugs and alcohol and thus was possibly impaired during the commission
of the crimes. Morris testified he was drunk or high while Goodpaster was being tortured.
He said he had been drinking the day before Goodpaster's kidnapping and murder. He
and Bussart also testified they had smoked methamphetamine with Goodpaster in the
truck after they arrived at the Hillards' house. Surveillance footage shows the three men
going out to the truck around 4:15 a.m. and returning to the Hillards' house around 4:30
a.m.
All the same, little to no evidence showed Morris was intoxicated to a degree that
would impair his ability to form the necessary intent. Morris claimed "[his] mind was
gone," but this claim is undercut by his own testimony. Morris was able to provide a
coherent narrative of what happened on the morning of November 6, 2016, including
what he did and why he did it. See State v. Davis, 306 Kan. 400, 414-15, 394 P.3d 817
(2017) (holding ability to provide coherent narrative undercuts claim of intoxication
sufficient to warrant an instruction). He acknowledged he could walk and talk. He
11
admitted he could perceive Goodpaster's need for help, and he claimed he tried to help
Goodpaster. The audio recording also shows Morris was able to understand and
participate in Goodpaster's interrogation. And, no one else testified Morris appeared
intoxicated.
As the State also points out, Morris did not claim he drank alcohol or smoked
methamphetamine after about 4:30 a.m. on November 6, 2016. This was two and a half
hours before Goodpaster was taken out to the Hillards' shed. And, it was more than six
hours before Jeff, Bussart, and Morris loaded Goodpaster into the truck and left the
Hillards' house.
A voluntary intoxication instruction may have been a legally available defense to
Morris' first-degree murder charge and conviction. That said, a voluntary intoxication
instruction would not have been factually appropriate because insufficient evidence
supported Morris' voluntary intoxication defense. See State v. Betancourt, 299 Kan. 131,
142-43, 322 P.3d 353 (2014) (holding evidence that defendant consumed alcohol and
cocaine and may have been impaired insufficient to require voluntary intoxication
instruction); State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 (2011) (holding
evidence that defendant consumed alcohol and marijuana and testimony that defendant
was high or intoxicated insufficient to require instruction). As a result, the district court
did not err in declining to give Morris' requested instructions.
Gruesome Photographs
Next, Morris argues the district court erred when it admitted photographs of
Goodpaster's body at trial. Because Goodpaster's body had been outside and exposed to
the elements for almost a week, it had started decomposing, causing some discoloration
12
of his skin. His body also had some damage due to animal activity. Much of his nose was
gone, as well as some muscle tissue on his arms, and these areas had turned black. Morris
contends the photographs of Goodpaster's body were gruesome and had little, if any,
probative value.
When reviewing a district court's decision to admit photographic evidence, an
appellate court must first decide if the photographs are relevant. Evidence is relevant, and
thus generally admissible, if it has a reasonable tendency to prove any material fact. That
said, a district court may still exclude relevant evidence if the evidence presents a risk of
undue prejudice which substantially outweighs its probative value. State v. Seba, 305
Kan. 185, 213, 380 P.3d 209 (2016); see also K.S.A. 60-401(b); K.S.A. 60-445.
If a party has argued photographs are prejudicial because they are unduly
repetitious, gruesome, or inflammatory, an appellate court reviews the district court's
decision for an abuse of discretion. Seba, 305 Kan. at 213. The party alleging an abuse of
discretion bears the burden of proof. State v. Mireles, 297 Kan. 339, 354, 301 P.3d 677
(2013). "Admission of photographs that are unduly repetitious and cumulative, or that are
introduced solely for a prejudicial purpose, constitutes an abuse of discretion, albeit such
a finding is rare in a murder case. [Citation omitted.]" 297 Kan. at 354.
To begin with, the State argues Morris has not preserved this issue for appeal
because he did not lodge a specific objection to the photographs. K.S.A. 60-404 generally
precludes an appellate court from reviewing an evidentiary challenge absent a timely and
specific objection made on the record. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862,
cert. denied 137 S. Ct. 310 (2016).
13
Before trial, Morris filed a motion in limine to exclude all photographs of
Goodpaster's body. According to Morris, the State had several hundred gruesome
photographs of Goodpaster's partially decomposed body. Because the State intended to
present testimony about Goodpaster's injuries and cause of death, Morris argued the
photographs had little probative value and would serve only to inflame and prejudice the
jury.
The State filed a response arguing the photographs were critical to show
Goodpaster's injuries and cause of death. It added it only intended to use about 34 of the
411 autopsy photographs, choosing the ones most relevant to Goodpaster's injuries. The
State also intended to introduce about 14 crime scene photographs, taken at various
distances from his body.
At a motions hearing, Morris' defense counsel told the court he was "overall
objecting to any photos of the corpse," but added the ones he was most concerned about
were not included in a revised list of photographs the State intended to offer at trial.
Defense counsel reiterated he was standing by his motion in limine, but he said he had a
particular problem with only one photograph on the list, later admitted as State's Exhibit
267. The photograph showed Goodpaster's face and depicted the damage to his nose.
Defense counsel objected to the photograph because maggots were visible in the nose
area.
The State responded that the pathologist had chosen that photograph to show
puncture marks around Goodpaster's mouth which could have been caused by a staple.
Neither party was aware of a less graphic photograph showing the puncture marks. But
the State agreed to try to crop out the nose area.
14
After verifying defense counsel was only objecting to that one photograph in
particular, the district court overruled "that specific objection" because the photograph
was highly relevant. The court asked the State to block out the nose area. It also said it
would revisit its ruling if defense counsel thought the State had not done an adequate job
of editing the photograph.
The State ultimately offered 12 crime scene photographs at trial as State's Exhibits
85 through 94, 96, and 99. Before the district court admitted the photographs, defense
counsel told the court, "I just stand by my earlier objections that were made prior to trial."
The State later offered 33 autopsy photographs as State's Exhibits 237-269. Before the
forensic pathologist took the stand, the district court reviewed State's Exhibit 267. The
State had blurred out Goodpaster's nose, and defense counsel agreed the State had done
an adequate job of editing the photograph. Before admitting the photographs, the court
asked defense counsel if he had any objections, and he responded, "Only what was
previously made, Your Honor."
At this juncture, we need not determine whether this issue was properly preserved
because Morris' argument clearly fails on its merits. In a criminal case, the State has the
burden to prove all the elements of the crime charged. Photographs used to prove the
elements of the crime, including the manner of death and violent nature of the crime, are
relevant and admissible. "Photographs depicting the extent, nature, and number of
wounds inflicted are generally relevant in a murder case." State v. Hilt, 299 Kan. 176,
196, 322 P.3d 367 (2014).
Morris asserts the State could have made its case with fewer crime scene and
autopsy photographs, and, "[c]onsidered collectively, they had no additional probative
value and added nothing to the State's case, and the trial court abused its discretion when
15
it admitted them." We agree some of the photographs may have repetitious, but we find
the district court did not err in admitting them, given their probative value.
State's Exhibits 85 through 94, 96, and 99 depicted the area where Goodpaster's
body was found, and 10 of the 12 photographs show his body. His body was in a
relatively nondescript area of Harvey County, along a wooded ravine near a farmer's field
road. State's Exhibit 85 is taken from the field road. Goodpaster's body is not visible in
this photograph. State's Exhibits 86, 87, and 88 show the scene as one approached the
ravine, getting incrementally closer to his body.
State's Exhibits 89 through 92, 94, 96, and 99, depict Goodpaster's body as it was
found, while State's Exhibit 93 shows only a spot of blood on the tree trunk. The
photographs of Goodpaster's body are all taken at different angles and from varying
distances. They depict Goodpaster's body hanging from a tree by a rope. He is wearing
only a pair of shorts, a pair of boxers, one sock, and one shoe.
State's Exhibits 86 through 88 show only the upper half of his body from a fair
distance. Four photographs show his full body from different angles and distances. One
photograph primarily shows multiple small skin injuries on his back. Another primarily
shows the injuries to the front of his torso, including a large reddish mark covering his
chest and abdomen. The photographs of the back and torso injuries are somewhat
duplicative of several autopsy photographs, including State's Exhibits 237, 243, 244, 246,
and 265. State's Exhibit 99 shows Goodpaster's shorts and boxers are cut open, partially
exposing his genitals.
State's Exhibits 237 through 269 depict the condition of Goodpaster's body at the
beginning of the autopsy. The forensic pathologist testified Goodpaster had so many
16
abrasions on his back that "you really almost need the photograph to appreciate, because
they're fairly numerous." He also testified the photographs would help the jury
understand his testimony about the autopsy and cause of death "particularly in this case,
with the multitude of superficial injuries."
Of the autopsy photographs, several depict Goodpaster's entire body, both front
and back. Other photographs depict injuries on various body parts. For example, several
photographs show the ligature mark around Goodpaster's neck from different angles.
Other photographs show injuries on the back of his upper and lower left leg and the back
of his upper and lower right leg. Still others show injuries on his left and right arms and
left hand. State's Exhibit 256 depicts a scalp injury possibly caused by a "rounded striking
instrument." Several photographs also depict items found on Goodpaster's body. No
photographs of his body during or after the surgical autopsy were admitted.
Perhaps the most gruesome aspect of the autopsy photographs is the animal
damage to Goodpaster's body. This damage is visible in numerous photographs. State's
Exhibit 250 and 259, depicting his left and right arm respectively, show missing muscle
tissue. State's Exhibit's 267, 268, and 269 show the damage to his nose up close. While
the State blurred out the nose area in State's Exhibit 267, the damage also is visible in the
other two photographs. The damage to the nose also is visible in several other
photographs showing the front or side of Goodpaster's head.
The photographs in this case served several evidentiary purposes. First, the crime
scene photographs, as well as the autopsy photographs showing the ligature marks on
Goodpaster's neck, supported the pathologist's ruling on Goodpaster's cause of death. The
autopsy photographs also helped show the nature and extent of Goodpaster's wounds,
which were relevant not only to Morris' first-degree murder charges, but also his
17
aggravated kidnapping and aggravated battery charges. These charges required the State
to prove Goodpaster had sustained bodily harm and great bodily harm respectively. See
K.S.A. 2016 Supp. 21-5408 ("Aggravated kidnapping is kidnapping . . . when bodily
harm is inflicted upon the person kidnapped."); K.S.A. 2016 Supp. 21-5413 ("Aggravated
battery is . . . [k]nowingly causing great bodily harm to another person . . . .").
The photographs also helped to corroborate the testimony of Sperber and Bussart.
For instance, State's Exhibit 263, showing a laceration on Goodpaster's right ear,
corroborated testimony that Heidi had cut his ear. State's Exhibit 267 and 268 show small
puncture marks around Goodpaster's mouth and left eye. In State's Exhibit 269, a staple
found in Goodpaster's beard is being held up to two puncture marks to demonstrate the
space between the marks is consistent with the width of the staple. These photographs
corroborated Sperber's testimony that Heidi had tried to staple Goodpaster's eyes and
mouth shut. Corroboration was particularly important in this case because both witnesses
had credibility issues. Bussart was an accomplice witness. He had pleaded guilty to
felony murder, and the State dismissed his other charges in exchange for his testimony.
And, Sperber had a prior conviction for filing a false report that she had been kidnapped.
Even if the State could have proved its case with fewer photographs, this is not the
standard when reviewing the admission of photographic evidence on appeal. While a few
of the admitted photographs may have been repetitious, they were not unduly so. And
while many of the photographs may have been gruesome, they were relevant and
admissible to show the manner and violent nature of Goodpaster's death and corroborate
Sperber's and Bussart's testimonies. See State v. Robinson, 293 Kan. 1002, 1030, 270
P.3d 1183 (2012). As a result, the district court did not abuse its discretion in admitting
the photographs.
18
Cumulative Error
Finally, Morris argues cumulative error denied him a fair trial. In a cumulative
error analysis, an appellate court collectively considers all errors, even if those errors
would be harmless individually, to determine if their combined effect denied the
defendant a fair trial. State v. James, 309 Kan. 1280, 1311, 443 P.3d 1063 (2019). The
court will find no cumulative error when the record fails to support the errors defendant
raises on appeal. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015). A single
error cannot support reversal under the cumulative error doctrine. State v. Gonzalez, 307
Kan. 575, 598, 412 P.3d 968 (2018). And, no prejudicial error will be found under the
cumulative error doctrine if the evidence against the defendant is overwhelming. James,
308 Kan. at 1311.
The record does not support either of Morris' alleged errors. What's more, the
evidence of Morris' guilt was overwhelming. Thus, cumulative error did not deprive
Morris of a fair trial.
Affirmed.
MICHAEL E. WARD, Senior Judge, assigned. 1
1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case
No. 119,911 under the authority vested in the Supreme Court by K.S.A. 20-2616
to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.
19
20 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902653/ | Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered November 27, 1985, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902654/ | Appeal by the defendant from a judgment of the County Court, Westchester County (Rosato, J.), rendered February 24, 1987, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of *771that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed, and the case is remitted to the County Court, Westchester County, for further proceedings pursuant to CPL 460.50 (5).
At about 5:00 a.m. on July 6, 1986, Lincoln Lobban was walking home in New Rochelle. It was already daylight. As he walked along, a man subsequently identified as the defendant came up from behind him and asked if he knew where there was an open bar so he could get a drink. Mr. Lobban said he did not know of any but told the defendant to go to North Avenue, where a few bars were located and might be open. During this conversation, the defendant and Lobban were walking side by side.
The defendant then proceeded past Lobban, until he was approximately 20 feet ahead of him, then turned and walked back toward Lobban. Right after the defendant again passed Lobban, Lobban felt a blow to his head and found himself lying on his back on the ground. While he lay there, he felt and saw hazily the defendant go through his pocket. The defendant then left the scene.
Lobban called the police from a nearby telephone booth. Police Officer Carol Krus responded to the scene. According to Officer Krus, Lobban was bleeding heavily and speaking incoherently. Officer Krus questioned Lobban, who described his attacker as a tall black man with white pants, in his late twenties, or early thirties. The officer testified at the Wade hearing and at the trial that Lobban rambled again and again that he could not believe such a thing could happen to him in a nice city like New Rochelle. While they waited for an ambulance, Officer Krus heard over the police radio that a suspect had been apprehended nearby. When the ambulance arrived, Officer Krus asked one of the paramedics if Lobban could be taken to observe a suspect before being transported to the hospital. Upon receiving an affirmative response, Officer Krus informed Lobban that they were going to drive to a location where other officers had a suspect in custody who matched Lobban’s description of the mugger. While en route to a parking lot of a nearby housing project where the defendant was being detained, Officer Krus advised Lobban, who was very agitated, to be sure to remain in the car and just state whether or not the suspect was, in fact, the person who committed the crime. Upon pulling into the parking lot, Lobban spotted the defendant and screamed, "that is him, that is him”. The defendant was wearing off-white pants and a *772darker tee shirt. He was also being held by the arms of two uniformed policemen. According to Lobban, the defendant was "resisting” the two officers. There was conflicting testimony about whether or not the defendant was handcuffed at this time. The only other black man at the scene was a third uniformed officer.
The defendant alleges that he was in the company of a female New Rochelle police officer at the time of the robbery. Both the defendant and the woman officer testified that they had been at breakfast in Larchmont before driving back to New Rochelle. The officer testified at trial that the defendant had dropped her off at 5:05 a.m.
The defendant alleges, inter alia, that testimony as to the showup identification should have been suppressed. We disagree. The courts have been willing to forgive irregularities in such procedures in the name of swift identifications (see, People v Griffin, 135 AD2d 730; People v Jeffries, 125 AD2d 412, lv denied 69 NY2d 882). Where a showup procedure takes place in close proximity to the scene of a crime, and as here, shortly after the crime, it does not deny a defendant his right to due process. Such procedures are justified because a speedy identification is preferable, and a longer detention may unnecessarily infringe on the liberty of an innocent person (see, People v Digiosaffatte, 63 AD2d 703).
Under the circumstances of this case the showup cannot be said to be improper. It took place within a few blocks of the crime and within 20 minutes thereof. Although the circumstances of the showup were not ideal (see, People v Osgood, 89 AD2d 76), they were not so egregious as to warrant suppression.
Furthermore the record reveals that there was a valid, independent source for an in-court identification. The victim and his attacker walked side by side for a few minutes while they spoke to each other; it was also daylight. Therefore Mr. Lobban’s identification of the defendant as his attacker was free from any taint (see, People v Adams, 123 AD2d 769, lv denied 69 NY2d 707).
The defendant also claims error in the introduction, at the trial, of photographs taken of Mr. Lobban shortly after his hospital treatment. These photographs displayed stitches in his head and chin and bloodstained clothing. The defendant claimed that this evidence was cumulative and served no purpose other than to gain the sympathy of the jury. Graphic photographs have been admitted into evidence because they *773demonstrate a material element of the crime charged (see, People v Pobliner, 32 NY2d 356, cert denied 416 US 905). Physical injury to any person who is not a participant in the crime is an element of robbery in the second degree as charged in the indictment in this case (see, Penal Law § 160.10 [2]). The introduction of these photographs were necessary to the proof of this element. Their introduction into evidence was not error.
We have examined the defendant’s other contentions and find them unpreserved for appellate review or without merit. Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902655/ | Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 21, 2009, which, insofar as appealed from, denied the motion of defendant Franco E Cerabona, M.D. for summary judgment dismissing the cause of action alleging medical malpractice as against him, unanimously affirmed, without costs.
The record presents triable issues of fact as to whether defend*421ant physician committed malpractice by performing spinal surgery on plaintiff’s decedent. In response to the evidence submitted by defendant showing that the surgery was appropriately performed, plaintiff submitted an affidavit from an expert stating that defendant departed from good and accepted medical practice by performing the spinal fusion surgery that was contraindicated for the decedent and that such departure was a proximate cause of the decedent’s injuries. Plaintiff’s expert reviewed the decedent’s medical records and films and detected no evidence of spinal instability. The expert further noted the numerous risk factors involved with the decedent undergoing the surgery and concluded that it was likely to fail. Such conflicting evidence warranted the denial of summary judgment in defendant’s favor since “[Resolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury” (Frye v Montefiore Med. Ctr, 70 AD3d 15, 25 [1st Dept 2009]). Concur— Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902656/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered April 3, 1987, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was given an opportunity to address the court at the time of sentencing in connection with his motion to withdraw his plea of guilty (see, CPL 220.60; People v Tinsley, 35 NY2d 926; People v Morris, 118 AD2d 595, 596, lv denied 67 NY2d 947). The defendant failed at that time to assert any facts in support of his claim that he had a valid defense of justification, and so his current claim of innocence, which directly contradicts his plea allocution, was not substantiated (see, People v Dixon, 29 NY2d 55, 57; People v Soto, 129 AD2d 748, lv denied 70 NY2d 657). Also, the defendant’s claim that he does not understand English is belied by a review of the extensive statements he made, in English, in response to various questions posed during the sentencing and plea proceedings, as well as during the course of his testimony before the Grand Jury. The defendant may not now claim that he misunderstood the terms of the plea bargain, which were clearly stated on the record and which are subject to but one interpretation (see, People v Cataldo, 39 NY2d 578, 580; People v Welch, 129 AD2d 752).
We have examined the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902657/ | by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered March 31, 1987, convicting him of criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fourth degree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that *774branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
The defendant contends that the People failed to establish constructive possession of the cocaine and handgun found in a vehicle being used by him (see, Penal Law § 10.00 [8]). We disagree. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the conviction. The testimony of the police officers indicated that when the defendant arrived on the scene, he claimed ownership of the car, and admitted ownership of the briefcase situated therein which contained the cocaine and handgun. Furthermore, the defendant’s son testified that the defendant had given him the briefcase to put in the car, and that he recognized the briefcase as the defendant’s. Under the circumstances, the evidence was more than sufficient to show that the defendant exercised dominion and control over the area in which the contraband was found (cf., People v Olivo, 120 AD2d 466; People v Casanova, 117 AD2d 742, lv denied 67 NY2d 940).
We have examined the defendant’s other contentions and find them to be either unpreserved for appellate review or without merit. Thompson, J. P., Brown, Fiber and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826246/ | OPINION
SMITH, Chief Judge.
This takings case is brought under the Fifth Amendment to the Constitution and 28 U.S.C. § 1491 (1982). Plaintiffs, M.R.K. Corporation and Cliff and Dorothy Morten-sen (MRK), are seeking just compensation for a flooding of certain areas of their property, allegedly by the United States. After consideration of all of the evidence presented at trial, and the parties’ post-trial submissions, the court finds that the plaintiffs have not met their, burden of proving that the United States is the direct and proximate cause of the water damage of which plaintiffs complain. Their complaint must therefore be dismissed.
FACTS
The MRK land is located in a portion of the State of Washington known as the Columbia River Basin. The basin is the site of a large irrigation project known as the Columbia Basin Project, part of which is the alleged cause of the inundation at issue here.
The central structure of the Project is the Grand Coulee Dam. This dam blocks the flow of the Columbia River and creates *539the 151 mile long Franklin D. Roosevelt Lake. Below the dam a portion of the water is lifted 288 feet through a feeder canal into the Banks Lake storage area. This water then moves southward through the Bacon Tunnel and then a main canal to a bifurcation works. The bifurcation works is a system designed to direct water into the various canals. From this bifurcation works the water leaves the control of the United States and moves through either the eastern canals, which direct water to the East Columbia Basin Irrigation District, or through the western canals, which direct water to the Quincy Conservation and Irrigation District. All canals direct water in a southerly direction following the general slope of the land.
In the central portion of the geographic area of the project, but unconnected to the network of canals, lies Moses Lake. Moses Lake is a naturally occurring lake fed, at least in part, by Rocky Ford Creek to the north, and by Crab Creek, via Parker Horn1, further to the south. The water level in Moses Lake varies between 1,043 feet and 1,047 feet above mean sea level.
Directly south of and connected to Moses Lake lies the Potholes Reservoir. The reservoir is created by O’Sullivan Dam, and covers a forty-five square mile area. The O’Sullivan Dam was built across Drumhel-ler Channel which was, before the dam, the natural point of drainage for the land to the north. Thus, Potholes Reservoir is uniquely situated to catch the natural water runoff from the Columbia River Basin. This runoff includes both underground and aboveground irrigation return flow, as well as some water returned directly from the east and west canals. Potholes Reservoir can in some ways be thought of as a giant sink for much of the basin, accumulating water during part of the year and returning it to the region during other parts. The relevant portions of the Columbia River Basin discussed above are reflected, although not to scale, in the map below. The inset from defendant’s Exhibit 15 shows, in the dark area, the general location of the Project within the State of Washington.
*540[[Image here]]
Water storage in Potholes Reservoir began in 1951. From that date the depth of Potholes gradually increased. Plaintiffs’ Exhibit No. 3, graphs of the maximum and minimum annual water stage readings of Potholes Reservoir, indicates that in 1952 the maximum level of Potholes was about 1,020 feet. From 1957 the maximum reached a peak of 1,044 feet after a continual increase from the 1952 maximum level of 1,020 feet. From 1957 to the present, the level has been relatively stable with the maximum varying between 1,039 feet and 1,046.5 feet. The minimum levels reach their highest in 1956 rising to 1,035 feet. From that point on they steadily declined *541until the mid-1960’s reaching a low of 1,022 feet. Since that time they have varied back and forth between 1,022 feet at the low and 1,035 feet at a high. Generally, Exhibit No. 3 shows a very slight increase in the maximum yearly depth of Potholes Reservoir from 1957 to 1980. There is also evidence that Potholes has recently been maintained at the higher levels for longer periods of time than in the past.
Potholes Reservoir is hydraulically contiguous 2 with a gravel aquifer3, known as the Mae Valley Aquifer. This aquifer extends to the community of Moses Lake and allegedly to part of the plaintiffs’ property. Potholes is also hydraulically contiguous with a well, number 30 P/Q, which is located southwest of plaintiffs’ property, presumably in the aquifer.
The plaintiffs’ property covers approximately thirtynine acres and is located about five miles northeast of Potholes Reservoir adjacent to the southern portion of Moses Lake at the very tip of Pelican Horn (see map). The property is shaped somewhat like a square. It is bordered on the west by Division Street and on the east by Pioneer Way. To the north the property is bordered by a residential area through which both Alder and Balsam Streets dead-end into the MRK property. On the south border, the area of highest ground, is the community of Garden Heights.
The MRK land varies in elevation from 1,046 feet4 to 1,120 feet above mean sea level. The lowest elevation is on the northern portion of the land. Water thus flows towards the northern portion of the land and eventually into Moses Lake. Currently, the land contains three ponds located along the northernmost areas of the property. Numerous other areas on the property are best described to be wetlands as indicated by the presence of cattails and other water-dependent grasses. The above is reflected in plaintiffs’ Exhibit No. 15, a map of the MRK property which is reproduced below. This map also indicates the height (in feet) above mean sea level of selected wells on or near the MRK property-
*542[[Image here]]
Although the current water level on the MRK property is high, this is not a recent development. Rather, there is substantial evidence indicating that the property was wet as early as 1949. William Seevers, a government expert, testified from a 1949 aerial photograph that a pond was present directly across Division Street from the property.5 He also testified that the property itself contained some wet soil and water-dependent grasses as indicated by dark areas on the photograph. Mr. Seevers further testified from a 1961 aerial photograph that a large pond had developed on the northwestern corner of the property directly across Division Street from the pond present on the 1949 photograph. The *543pond in the 1961 photograph extended from Division Street, past the short Alder Street extension, to the Balsam Street extension. At this time the pond was fairly large, covering nearly the entire northwest corner of the property. The 1961 photograph also indicates the presence of a free flowing well just south of, and at a higher elevation than, the pond. Thus, well water, which has been measured to be running at about 428.5 acre feet per year,6 or an average of 382,539 gallons per day, a significant quantity, flows directly downhill into the pond. Additionally, this photograph shows a wet area in the northeast corner of the property which Mr. Seevers contended was the precursor to the third pond now occupying that area.
Mr. Seevers also testified from a 1973 photograph that the large pond found in the 1961 photograph was split in two by the further extension of Alder Street into the MRK property. From a 1976 photograph Mr. Seevers noted that the third pond in the northeast corner was beginning to take shape. He also noted that the well was still flowing. Similarly, Mr. Seevers testified that a 1982 photograph indicated wetness such as a pond in the northeast comer of the property.
The plaintiffs have developed a novel and complex theory of how the United States has caused the increased, and apparently increasing water on their property. This theory, which was developed by Dr. Maddox, plaintiffs’ main expert, holds that the United States, by keeping Potholes Reservoir at the higher levels for longer periods of time has contributed to increasing water on the MRK property.7 According to Dr. Maddox’ theory, the increased water comes from two separate sources. The fullness of the aquifer causes water to back up onto the property and also causes irrigation return flow to remain on the property rather than run off as it would do in the absence of a full aquifer.
In addition to regional geologic evidence, Dr. Maddox has approached verification of his theory in two ways. In the first he developed a water budget which compares the amount of water entering the property with the amount of water leaving the property. According to Dr. Maddox’ measurements, more water left the property than entered from known measurable sources. This indicates, says Dr. Maddox, a contribution of water from the gravel aquifer. In the other way, he tested the water level via stakes placed in the area immediately adjacent to the shoreline of the easternmost pond. These stakes were to measure the changes in elevation of the pond, which, if Dr. Maddox’ theory was correct, would presumably move in concert with changes in the elevation of Potholes Reservoir, though with some delay.
DISCUSSION
The defendant presents two preliminary questions intended to preclude the court from reaching the merits of this case. First, defendant argues that the statute of limitations, 28 U.S.C. § 2501 (1982), operates to bar the plaintiffs’ claim. Secondly, defendant relies upon the doctrine of laches to bar the claim. The court, for the reasons given below, finds that neither the statute of limitations nor the doctrine of laches would bar the plaintiffs’ claim.
*544THE STATUTE OF LIMITATIONS
A claim brought in this court must have accrued within six years prior to the filing of the complaint. 28 U.S.C. § 2501 (1982); Bellamy v. United States, 7 Cl. Ct. 720 (1985). The question of when a claim has accrued is particularly fact intensive and susceptible to varying interpretations. Cooper v. United States, 827 F.2d 762 (Fed.Cir.1987), Barnes v. United States, 210 Ct. Cl. 467, 538 F.2d 865 (1976). “A claim first accrues when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” Japanese War Notes Claimants Ass’n v. United States, 178 Ct. Cl. 630, 632, 373 F.2d 356, 358 cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967).
The case at bar presents a question of when a claim first accrues. It is undisputed here that plaintiffs were aware of the general wetness of the property as early as 1961. It is also undisputed that the amount of water on the property increased at least until 1976. There is also evidence that a new pond has formed and has continued to increase in size since 1977.
Relying on the evidence of increasing wetness, plaintiffs argue that this case falls within the “continuing process” exception to the running of the statute of limitations recognized by the Supreme Court in United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1946). In Dickinson the Court held that a plaintiff whose land was flooded over time by the United States was not required to bring suit until the situation became stabilized.
Although this case may arguably be like Dickinson, the court does not decide the question on the basis of Dickinson. Rather, the court is of the opinion that plaintiffs’ claim here did not accrue until Dr. Maddox formulated his theory that the United States, by way of increased water levels in Potholes Reservoir, flooded the MRK property. The court recognizes that under normal circumstances the development of a theory of liability is not a part of the accrual of a claim. However, where damage is clear but the cause of damage is unknown, as is the case here, the plaintiffs have not sat upon their rights. Plaintiffs merely did not know who, if anybody, to sue. Were this a less complicated theory of liability, the court might not reach this conclusion. But, because of the uncertain cause of the increasing wetness and its slow pace, the court believes that the claim did not accrue until the early 1980’s when Dr. Maddox first worked for the plaintiffs. This case was then filed well within the six-year period.
The defendant has argued that this case is like Baskett v. United States, 8 Cl.Ct. 201 (1985) aff'd, 790 F.2d 93 (Fed.Cir.1986), cert. denied, 478 U.S. 1006, 106 S.Ct. 3300, 92 L.Ed.2d 714 (1986). In Baskett the court held that the proper test for determining when the statute of limitations begins to run in the flood cases is when the damage has: “(1) manifested itself so that it should have been recognized, (2) the circumstances were such that the damage was a foreseeable future event, or (3) that the alleged effects of the dams’ actions were fully known by the landowners.” Id. at 231. The fault with reliance upon this test in this case lies in the fact that MRK well knew that its property was damaged, but did not know who did it, if anybody, or how. Thus, if the causal connection between Potholes Reservoir and the plaintiffs’ land was clear, the test enunciated in Baskett would be applicable. Since the causal connection was not even theoretically clear, Baskett does not apply.
This result is not unlike that achieved in those cases where the injury was “inherently unknowable.” Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed.2d 1282 (1949). In the Urie case the plaintiff had filed suit in 1941 seeking recovery for silicosis caused by the silica dust in which he had been working. The applicable statute of limitations was three years. Plaintiff had been working in the silica dust since 1910 but was not diagnosed to have silicosis until 1940. The defendant argued that the plaintiff “must unwittingly have contracted the silicosis long before 1938.” Id. at 169, 69 S.Ct. at 1024. The Court held that the cause of action accrued in 1940, *545the date of the doctor’s diagnoses, rather than on the unknowable date on which he first contracted silicosis but did not know it.
Here plaintiffs knew that something was wrong, but did not discover what the possible cause was until 1981 when Dr. Maddox first began developing his theory. Causation of the flooding here was just as unknowable to MRK as the date of contracting silicosis was to the plaintiff in Urie. Neither cause of action accrued until the doctors’ respective diagnoses.
THE DOCTRINE OF LACHES
The defense of laches must also fail. For that doctrine to preclude an examination of the merits of this case the United States must show that “the [plaintiffs] lacked diligence in asserting [their] claim and ... that the defendant was prejudiced by this delay.” Bevelheimer v. United States, 4 Cl.Ct. 558, 563 (1984). A showing of prejudice of course has many nuances but is usually referred to in terms of lost evidence or a change in position that would not have occurred in the absence of the delay. Id. Here it is clear that no unreasonable delay existed. The potential liability of the United States was not discovered by Dr. Maddox until sometime in 1981, and the suit was filed in 1983. Two years delay is not a long time given the complexity of Dr. Maddox’ theory. Furthermore, there is nothing in the record indicating that evidence was lost in the years between 1981 and 1983. In fact, during this period plaintiffs attempted to develop and uncover evidence by various tests. The United States has also not changed its position during that period as a result of plaintiffs’ failure to immediately file suit. Defendant’s laches argument is wrongfully premised upon the belief that plaintiffs knew that the United States was the cause of the flooding.
THE MERITS
The issue upon which this case turns is whether the plaintiffs have met their burden of proving that the United States is the cause of the MRK water troubles. The just compensation clause of the Fifth Amendment, under' which plaintiffs proceed, provides in relevant part: “Nor shall private property be taken for public use, without just compensation.” The question of whether private property has been taken has, over time, resulted in numerous fact intensive cases creating a body of law often confusing in its applications. This case, however, requires an application of more basic principles of causation. It is axiomatic that the United States is not liable unless it is the direct and proximate cause of the problem from which plaintiffs’ complaint arises. Baskett v. United States, 8 Cl.Ct. at 210 (1985). In Tri-state Materials Corp. v. United States, 213 Ct.Cl. 1, 550 F.2d 1 (1977), the Court of Claims held, in a case somewhat akin to this one, that “[i]f we look to the consequences of the case at bar, we see a but/for relationship to the permanent flooding. This is all that is required.” Id. at 8, 550 F.2d at 5.
The major hurdle facing plaintiffs on the track to recovery then is whether but/for the creation of Potholes Reservoir would the MRK lands be inundated with water. The plaintiffs have not convinced the court by a preponderance of the evidence that this is so. The plaintiffs’ theory is well-structured, but the evidence does not prove that but/for the opening of Potholes Reservoir plaintiffs’ land would be, if not high, at least dry.
THE MADDOX’ THEORY
Plaintiffs, in essence, contend that the maintenance of Potholes at the higher levels for longer periods of time has caused ground water, ultimately headed for the outlet that Drumheller Channel used to provide, to remain on low lying MRK lands rather than drain down towards what is now Potholes Reservoir. In short, the water in Potholes Reservoir acts like a plug in a drain. The plaintiffs put it this way:
As the stage of water in Potholes Reservoir rises and falls, the groundwater level in the “gravel aquifer” located to the north, northwest and northeast of Potholes rises and falls in general re*546sponse. Through time, the groundwater level in the gravel aquifer adjacent to MRK has reached a maximum stage which stage is directly related to the stages at which Potholes has been maintained. At very few locations, particularly the MRK property, the maximum stage of groundwater in the aquifer is fixed by the elevation of land surface. Here, where there is continuous inflow of groundwater from the -upgradient areas (from the north and northwest) on its way to Potholes, the stage of groundwater in the gravel aquifer reaches land surface and discharges as surface water.
As the stage of Potholes is lowered by the Project, a corresponding but delayed decline in stage of groundwater in the gravel aquifer results. The decline in the groundwater level in the aquifer causes the surface water discharge to cease until such time as the level of Potholes is again increased. At such times there is a limited reentry of the surface water back into the gravel aquifer from the MRK ponds.8
To prove this theory, MRK must, at the very least, establish a relationship between the water in Potholes Reservoir and the water on MRK land. MRK does not, and cannot, contend that the water from Potholes moves upgrade onto MRK property.9 Rather, MRK contends that the Mae Valley Aquifer which is hydraulically contiguous with Potholes Reservoir, underlies the MRK land, and is therefore also hydraulically contiguous with its flooded areas.
There is agreement by both parties that an aquifer contiguous with Potholes Reservoir does exist. Whether that aquifer extends to or affects plaintiffs’ land is disputed. The plaintiffs rely almost completely upon expert testimony to support their claim that the aquifer does extend to the MRK property. In addition to testimony concerning the geology of the Moses Lake area, the plaintiffs also rely upon the previously mentioned two approaches performed by their expert witness, Dr. Maddox. In the first approach Dr. Maddox calculated a water budget purporting to show that water from the aquifer was entering plaintiffs’ property. In his second approach, Dr. Maddox attempted to show a relationship between Potholes and the MRK ponds through the placing of several stakes near the northeastern pond and measuring the varying depths of the pond over time. Neither the testimony on the geology of the area, nor the water budget, nor the stake test, adequately show the court that a relationship exists between Potholes Reservoir and the MRK land.
THE GEOLOGY TESTIMONY
Dr. Maddox testified from a 1960 geological map of the area that in his opinion the gravel aquifer did extend to the MRK land. That map indicated essentially two types of ground in the area in question. The most prevalent, and labeled Qg on the map, was the aquifer gravel. The second type of ground, labeled Qrs and Qrl on the map, was a sandy material making up what is known as the Ringold Formation.
The Ringold Formation is not a part of the aquifer in question. Dr. Maddox testified that the Qg gravel was deposited in the area as a result of a glacially caused change in the path of the Columbia River.10
Dr. Maddox also testified from plaintiffs’ Exhibit No. 7, a cross-section of the area north of the MRK property, that the western portion of the MRK land was underlain by the aquifer, marked as Qg. The eastern portion, according to Dr. Maddox, was un*547derlain by the Ringold Formation, marked as Qrs and Qrl. However, to reach this conclusion Dr. Maddox had to extrapolate from the cross-section to where the MRK property would lie. This is not convincing to the court. The cross-section covers a fairly large area and could not have been detailed to such a degree as would be required to accurately predict that part of the MRK property was above an aquifer and part was not.
Similarly, the defendant argues that the geologic map covers too large an area for an accurate determination of whether a certain type of geology extends to a small area of property. The court finds this to be a credible observation. Dr. Maddox’ conclusion rests upon the accuracy of the map in question. This map was intended to provide a general geologic overview of a large area of Washington State and thus was not intended to provide an accurate picture of specific geological boundaries. Liability of the United States cannot be predicated upon speculation, expert or not.
Additionally, Dr. Maddox testified that: “In general, the gravels on the MRK property are the same as those gravels in the Mae Valley area, except that the matrix— that is, the interstitial areas between gravel particles — are filled with a very fine grain of material, probably part of the silt fasces of the Ringold to the gravel on MRK property.”11 Dr. Maddox went on to testify that because of the interstitial material, the gravels on the MRK property have a lower transmissivity than the Mae Valley gravels. This means that the MRK gravels provide a greater resistance to the flow of water than do the Mae Valley gravels without the interstitial material.
However, contrary to Dr. Maddox’ testimony on this point, Mr. Seevers testified that no Bureau of Reclamation drilling had discovered aquifer gravel on the MRK property. Rather they “found Ringold in all of the wells that we drilled on the property.”12 Comparisons between the Mae Valley gravels and rocks found on the MRK property, substantiated Mr. Seevers testimony. Mr. Seevers took Mae Valley gravel from an abandoned gravel pit near Potholes Reservoir. This gravel had an effective grain size of .83 millimeters and a permeability value of 4,500 gallons per day per square foot. The MRK gravel taken from Well No. 7 located on the property had an effective grain size of .074 millimeters and a permeability value of less than 100 gallons per day per square foot.13 This is a very significant difference. Mr. Seev-ers conceded that there was no test made on that part of the property which was under water. The court is in agreement with Mr. Seevers that “all in all, there’s a big question mark as to what is truly under this part of the property.”14
Defendant has also presented evidence contrary to plaintiffs’ assertion that the aquifer extended to the MRK property. Defendant’s Exhibit No. 12, a smaller scale and presumably more accurate map, showed that the MRK property was mostly bounded and underlain by the geology of the Ringold Formation rather than the Mae Valley Aquifer represented by the Qg symbol. The map does show, although not conclusively, that a small portion of the northwest corner of the MRK property-may be underlain by the Mae Valley Aquifer. This is not enough evidence, however, to hang the proverbial hat upon. Mr. Seev-ers also testified that the Mae Valley Aquifer gravels “pinch out” near the MRK property15 and that there is a clay barrier separating Potholes and the MRK property.16
In sum, the testimony concerning the geology of the MRK property, and the areas surrounding that property, is conflict*548ing and reflects a basic uncertainty about what exactly underlies and affects the property. Although the defendant’s testimony is more convincing than the plaintiffs’, the court is not in a position to conclude directly what type of geology underlies the property. Therefore, it is sufficient to say that plaintiffs have not, through the geology testimony, met their burden of proof on this factual issue. There is little to convince the court that the Mae Valley Aquifer extends to, or affects, the MRK land.
THE STAKE TEST
In order to confirm Dr. Maddox’ theory, plaintiffs placed in evidence data from a stake test. To conduct this test Dr. Maddox placed three stakes into the area directly adjacent to the shoreline of the northeast pond and near well eleven. The theory of the stake test was that the rising water level could be measured periodically by noting the distance from the top of the stakes to the water.
The change in water level as reflected by the stakes was admitted into evidence in hydrograph form.17 These hydrographs show that the water level of the northeast pond increased over the months from November, 1984, to February, 1985, with February 21, 1985, being the highest reading on all three stakes. Potholes Reservoir, on the other hand, reaches it highest point in mid to late March of each year, and the peak in 1985 was March 30-31.18 Dr. Maddox testified that in his opinion “the rise and fall of that stage of water of those three stakes is related to the contribution of water to the MRK property from the ground aquifer.”19
The value of the stake test as conclusive evidence of a relationship between Potholes Reservoir and the MRK property is minimal. There are many factors which might affect a stake reading, including the spongy soil in which they were placed, precipitation, and water trapped by ice.20 In addition, there is little actual correlation between the level of Potholes Reservoir and the level of the MRK pond. In the absence of a “dampening effect [of] about nine to ten and one-half months,”21 which is improbable, there could be no relationship between the two. If there were a relationship between the two, the water level in the MRK ponds would have risen continually, at least until sometime after late March of 1985, the point at which Potholes Reservoir was at its highest. Although the court does not totally discount the stake test, it does not adequately support plaintiffs’ theory of a relationship between the MRK ponds and Potholes Reservoir.
THE WATER BUDGET
The plaintiffs also rely upon a water budget prepared by Dr. Maddox. The water budget in essence compares the amount of water entering the property from known sources with the amount of water exiting the property. Dr. Maddox determined that 509.95 acre feet of water from various known sources entered the property per year. He also determined that 712.4 acre feet of water per year from all sources left the property. The difference between the two, 202.45 acre feet per year was, in Dr. Maddox’ opinion, “representative of the net inflow to the property from the gravel aquifer that’s hydrologically contiguous with Potholes Reservoir.”22
The water budget approach requires a precise identification of each source of water inflow and outflow. Although Dr. Maddox’ measurements seem to be reasonably well calculated, they do not rise to the level of accuracy required to convince the court that the additional water is caused by the aquifer. Nor do they operate to exclude all other possible non-aquifer sources of water input and output. Dr. Maddox admitted on direct examination that the measurements were not the most accurate since water *549change could be “expressed in the property just getting wetter or, conversely, the property, ... getting dryer.”23 There is also some indication that trash near the pond discharge culverts was interfering with Dr. Maddox’ measurements.24 Additionally, Mr. Seevers testified that it is:
Very dangerous to take a small watershed and assume that you know exactly what’s going on rainfall-wise on that particular piece of land, and its very easy to get in trouble if you just simply make the assumption that since it rains so many inches at Moses Lake Airport ... that it would necessarily have fallen in this small watershed.25
This testimony is representative of the trouble which the court has with the water budget as a means of proving hydraulic continuity between the MRK ponds and Potholes Reservoir. The court is not convinced that the aquifer is the only explanation for the difference in the amount of water entering the land and the amount leaving the land even assuming that Dr. Maddox’ measurements are reflective of the underlying reality.
While it is true that there are inconsistencies in Mr. Seevers’ testimony, it is also true that the testimony points out the inherent weaknesses found in the water budget approach. For instance, Mr. Seevers testified that water was leaking through the basalt onto MRK property. This particular source of water, if it exists, is probably small, but nevertheless, it underscores the point that there may be alternative sources of water not considered by Dr. Maddox.
The court while not specifically finding that the water budget is useless notes that liability of the United States cannot be founded upon unproven, but aesthetically pleasing theories of liability. The testimony of defendant on this issue convinces the court that there may very well be a non-aquifer explanation for the water on the MRK land.
This is consistently true over the entire scope of this case. This case is founded upon a theory, an interesting and intellectually stimulating theory, but a theory nonetheless. None of the testimony indicates to the court upon a preponderance of the evidence that the United States is the direct and proximate cause of the increasing water on the MRK property. In fact there is evidence that the water level in the aquifer reached its peak in the late 1960’s.26 Also, there is testimony that the amount of irrigation return flow to the MRK land reached a peak in the 1960’s.27 Additionally, the levels of the observation wells had stabilized in the late 1960’s.28
Evidence such as this causes the court to further doubt the practical validity of Dr. Maddox’ theory. The stabilized groundwater levels of the late 1960’s are inconsistent with evidence clearly suggesting rising water levels on the MRK property into the 1980’s. Even assuming that the gravel aquifer was contiguous with the MRK property, it is difficult to envision the cause of increased water flow onto the property given that the aquifer has been stabilized for about 20 years.
For the above reasons, the court is compelled to conclude that plaintiffs’ claim has not been proven. Therefore, the clerk is directed to enter judgment dismissing the complaint.
. Parker Horn is a horn shaped extension of Moses Lake around which the city of Moses Lake is built. It is located, along with Pelican Horn, on the southeastern section of Moses Lake.
. “Hydraulic continuity” or "hydraulically contiguous” means "that the second body of water is associated in such a way to the first such that changes in the elevation of the first are ultimately reflected in measurable corresponding changes in elevation of the second body of water.” Defendant’s Opening Post-trial Brief at 26.
. An aquifer can be thought of as a porous region of rock and gravel which can store large volumes of water.
. This is approximately at the property’s minimum height, only one-half foot below the maximum possible height of Potholes Reservoir, set at 1,046.5 feet pursuant to a 1970 agreement between the Bureau of Reclamation and the Moses Lake Irrigation and Rehabilitation District (see Defendant’s Memorandum of Contentions of Fact and Law at 4). Exhibit 3 shows that the maximum height has been attained three times since the opening of Potholes Reservoir, once in 1969, once in 1974, and again in 1980. However, the level of Potholes has remained at maximum for short periods of time only.
. Mr. Seevers is Vice President and Senior Scientist with the consulting firm of Geraghty & Miller. He has a masters degree in geology/hy-drogeology from the University of Kansas, and has been actively working in his field since 1960 when he was a member of the Water Resources section of the Kansas Geological Survey. Mr. Seevers has been with Geraghty & Miller since he left the Kansas Geological Survey in 1966. The court notes that Mr. Seevers testimony was both credible and coherent.
. “325,850 gallons, or the amount of water which will cover one acre one foot in depth." Black's Law Dictionary 42, (4th ed. 1968.)
. Dr. Maddox is President of George Maddox & Asso., Inc., a geology/hydrology firm. He has a Ph.D in geological engineering and an M.S. in groundwater geology. Dr. Maddox has had 28 years experience in his profession as a hydrologist and has written numerous papers on the subject. The court finds his testimony to be credible and well thought out. The court’s problems Eire not with Dr. Maddox’ veracity but with the correctness of his theory. It is a tribute to Dr. Maddox that plaintiffs’ case is as strong as it is. It is precisely because Dr. Maddox’ theory was so well-developed that the court was required to make such an exhaustive analysis. In the end, however, the conclusion was fairly clear that the plaintiffs could not prevail. The reason this is so is that even with all of Dr. Maddox’ ingenious theory, there is not really any substantial evidence that the water on MRK’s property is a result of Potholes Reservoir’s level. If, with such substantial theoreticEil backing, experimentation, and expert testimony, the plaintiffs cannot prove their case, the inference can only be that the underlying facts do not support it.
. Plaintiffs’ Post-trial Memorandum of Law at 3-4.
. Potholes Reservoir is, as noted previously, maintained, for the substantial majority of the time, at levels below 1,046 feet; the lowest area of the MRK property. As the plaintiffs put it, "water does not run uphill and the ponded water at MRK is slightly higher in elevation than the surface water at Potholes Reservoir.” Plaintiffs’ Post-trial Memorandum of Law at 12.
."Between fifteen and twenty thousand years ago the path of the Columbia River was blocked by a lobe of the Cordilleran Ice Sheet. The Columbia River was [then] forced to flow southward through what is now known as the Quincy Basin of eastern Washington." Plaintiffs’ Post-trial Memorandum of Law at 2.
. Tr. at 102.
. Id. at 967.
. Id. at 998.
. Id. at 968 (Mr. Seevers).
. Id. at 971.
.Id. at 1008. (Although the court does not subscribe completely to Mr. Seevers’ conclusions that the gravels "pinch out” or that there is a clay barrier, the conflicting testimony on this issue underscores the difficulty with plaintiffs’ case.)
. Plaintiffs’ Ex. Nos. 17a-c.
. Tr. at 303.
. Id. at 307.
. Id. at 1234-36 (testimony of Mr. Seevers).
. IcL at 1237-38 (the Court).
. Id. at 262; Plaintiffs’ Ex. No. 21.
. Id. at 265 (the Court).
. Id. at 244.
. Id. at 1231-32.
. Id. at 1662 (testimony of Dr. Maddox).
. Id. at 1665.
. Id. at 1643-44. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902666/ | In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Stark, J.), entered February 6, 1986, which dismissed the proceeding.
*779Ordered that the judgment is affirmed, without costs or disbursements.
We have reviewed the record and agree with the petitioner’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902668/ | Judgment, Supreme Court, Bronx County (Cassandra Mullen, J., at hearing; Dominick Massaro, J., at jury trial and sentencing), rendered October 6, 2010, convicting defendant of criminal possession of a weapon in the second degree, resisting arrest and unlawful possession of marijuana, and sentencing him to an aggregate term of 3V2 years and a $25 fine, unanimously affirmed. The matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (5).
The court properly denied defendant’s suppression motion in all respects. There is no basis for disturbing the court’s credibility determinations. Initially, we note that there is no merit to defendant’s suggestion that he is entitled to suppression of a loaded pistol simply because some portions of the oral decision that the court rendered immediately after the hearing may have been inartfully worded.
Defendant did not preserve the challenge to the initial stop. Moreover, the police lawfully stopped the car defendant was driving after they observed that its windows appeared to be excessively tinted, in violation of the Vehicle and Traffic Law. When the police asked defendant to roll down the windows, they detected an odor of marijuana. This was sufficient, by itself, *422to provide probable cause to arrest defendant and search the car (see e.g. People v Smith, 66 AD3d 514 [1st Dept 2009], lv denied 13 NY3d 942 [2010]).
The People met their burden of establishing that defendant’s statements were made voluntarily (see People v Witherspoon, 66 NY2d 973, 973-974 [1985]; People v Ferro, 63 NY2d 316, 322 [1984]; People v Curry, 287 AD2d 252, 253 [2001]). When defendant denied knowledge of the pistol recovered from the glove compartment of the car he was driving, there was nothing coercive about advising defendant that the police would need to speak to his grandmother, who was the registered owner of the car. This was the next logical investigatory step. The record fails to support defendant’s assertion that, viewed in context, this was a threat to arrest defendant’s grandmother if defendant refused to admit possession of the weapon. We have considered and rejected defendant’s remaining arguments concerning the admissibility of his statements. Concur—Friedman, J.P, DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902669/ | In an action for a divorce and ancillary relief, the plaintiff husband appeals from an order of the Supreme Court, Nassau County (Burstein, J.), dated December 17, 1986, which granted the defendant wife the sum of $22,000 in counsel fees.
Ordered that the order is modified, on the law and the facts, by reducing the award of counsel fees to the defendant wife from $22,000 to $16,000; as so modified, the order is affirmed, without costs or disbursements.
After review of the record in light of the parties’ respective financial positions (see, Domestic Relations Law § 237; Borakove v Borakove, 116 AD2d 683), we are of the view that the award of counsel fees was excessive to the extent indicated. Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902671/ | Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered February 3, 2012, which denied plaintiff’s motion to vacate a default judgment, and denied sub silentio defendant’s request for attorneys’ fees and sanctions, unanimously modified, on the law, plaintiff’s motion granted, and the matter remanded to the motion court for disposition of the underlying motion on the merits, and otherwise affirmed, without costs.
Under the circumstances of this case the motion court erred in finding that there was no excusable default based upon law office failure (see CPLR 2005; compare Perez v New York City Hous. Auth., 47 AD3d 505, 505-506 [1st Dept 2008]).
Plaintiff also demonstrated a meritorious cause of action. Although the subject lease does have a disclaimer of defendant landlord’s ability to deliver possession of the premises on the commencement date, that provision may reasonably be read to be limited to instances of a holdover, construction problems or regulatory failures, outside defendant’s control (cf. Northgate Elec. Corp. v Barr & Barr, Inc., 61 AD3d 467 [1st Dept 2009]). Indeed, to read the clause to excuse failure to deliver possession for any reason, including intentional acts of defendant landlord to breach the lease, would render the contract illusory (see *423Souveran Fabrics Corp. v Virginia Fibre Corp., 37 AD 2d 925 [1st Dept 1971]; compare Pacific Coast Silks, LLC v 247 Realty, LLC, 76 AD3d 167 [1st Dept 2010]).
Moreover, plaintiffs claim that the failure to return its first month’s rent and security deposit constitutes unjust enrichment is not barred by the voluntary payment doctrine, which requires that plaintiff make the payment at issue without any alleged fraud or mistake (see Eighty Eight Bleecker Co., LLC v 88 Bleecker St. Owners, Inc., 34 AD3d 244, 246 [1st Dept 2006]). Here, however, plaintiff alleges that it made the payment not knowing that another tenant had a conflicting lease allowing it to continue in the premises.
Defendant is correct that plaintiff is barred from seeking lost profits, because it never took possession of the premises (see Dodds v Hakes, 114 NY 260, 265 [1889]). However, this does not warrant the conclusion that plaintiff does not have a meritorious cause of action.
In view of the foregoing, defendant is not entitled at this stage of the proceedings to an award of attorney’s fees under the lease, or to sanctions under 22 NYCRR 130-1.1. Concur— Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902672/ | In an action to recover damages for personal injuries, the plaintiffs’ firm of successor attorneys, Lipsig, Sullivan and Liapakis, P. C. (hereinafter the Lipsig firm) appeals, and the plaintiffs’ prior attorney Edward Murtaugh cross-appeals on the ground of inadequacy, from an order and judgment (one paper) of the Supreme Court, Dutchess County (Rosenblatt, J.), dated July 15, 1986, which, after a *782hearing, awarded Murtaugh, the attorney who represented the plaintiffs in this matter prior to the commencement of the lawsuit, the principal sum of $108,000, representing 20% of the total attorney’s fee in the underlying lawsuit and the balance to the Lipsig firm.
Ordered that the order and judgment is modified, by reducing the award to Murtaugh to the principal sum of $35,000; as so modified, the order and judgment is affirmed, with costs to the Lipsig firm, and the matter is remitted to the Supreme Court, Dutchess County, for entry of an appropriate amended judgment, which shall be paid in full within 30 days after service upon the Lipsig firm of a copy of the amended judgment, with notice of entry.
On September 27, 1982, the plaintiffs’ conservatee, Teresa Wong, sustained massive injuries when her vehicle collided with a tractor trailer that had jackknifed and crossed over into the opposite lane of traffic in which Wong was proceeding. The accident resulted in Ms. Wong’s permanent mental and physical incapacitation.
That same evening, Ms. Wong’s mother and uncle retained a local Dutchess County lawyer, Edward Murtaugh, to prosecute their claim for damages for Ms. Wong’s injuries against the driver and corporate lessor and lessee of the tractor trailer on a one-third contingency basis. Murtaugh performed numerous preliminary services for the plaintiffs but did not commence a lawsuit. On April 21, 1983, the plaintiffs discharged Murtaugh, without cause, and retained the Lipsig firm, again on a one-third contingency basis, to pursue their lawsuit. In a letter to Murtaugh dated May 2, 1983, the Lipsig firm acknowledged Murtaugh’s lien for prior legal services, which it was agreed would be determined by the court at the conclusion of the litigation. The Lipsig firm thereafter performed all the legal work on the case. Some months before the case was scheduled to come to trial, the Lipsig firm settled it for $1,800,000 out of the defendant’s $2,000,000 policy. The attorney’s fee was set by the court at $540,000. No agreement having been reached as to the amount due to Murtaugh, various motions were brought and a hearing was held, resulting in a ruling that 20% of this fee, or $108,000, plus interest, should be paid to Murtaugh. On appeal, both attorneys contest this figure, the Lipsig firm arguing that it is excessive, and Murtaugh alleging that it is inadequate.
On appeal, the Lipsig firm argues that because Murtaugh never instituted a lawsuit before he was discharged, he never *783became their attorney of record, so that he is entitled only to a fixed quantum meruit fee for his preliminary services, and not to a contingent percentage of the recovery under Judiciary Law § 475. The Lipsig firm also contends that the award of an attorney’s fee of $108,000 for preaction work alone was grossly excessive.
Murtaugh counters that he became attorney of record when he arranged for the plaintiffs’ conservatorship, and that he is therefore entitled to a contingent percentage of the attorney’s fee, based on quantum meruit. By Murtaugh’s calculation, his contribution was equal to that of the Lipsig firm in that his prompt investigation established defendant’s liability, so that he is entitled to 50% of the fee. The Supreme Court, Dutchess County, agreed with Mr. Murtaugh to the extent that it adjudged him entitled to a contingent percentage of the fee, although it estimated his contribution to be 20% rather than 50%.
We disagree with the award of a contingent percentage and with the size of the award for preaction services. By its plain language, Judiciary Law § 475 states that an attorney’s charging lien, which attaches to the proceeds of a judgment or settlement to the recovery of which the attorney’s work contributed, exists only "[f]rom the commencement of an action”. In other words, a discharged attorney claiming a contingent percentage of the attorney’s fee must have been the attorney of record for his lien to attach to the proceeds of a lawsuit "in whatever hands they may come”. Thus, an attorney whose name nowhere appears in the pleadings, motion papers, affidavits, briefs or record in a plaintiff’s action is not entitled to seek a contingent percentage charging lien under Judiciary Law § 475 (Rodriguez v City of New York, 66 NY2d 825). An attorney discharged before an action is commenced has the right to be compensated only on a flat quantum meruit basis (Turner v Steve Brody, Inc., 24 AD2d 904; Lebovic v Ballantine & Sons, 12 AD2d 494). Even where considerable preliminary work has been performed by a discharged attorney prior to commencement of the lawsuit, the courts have limited the recovery to strict quantum meruit (Matter of Feuerman, 199 Misc 936, 937).
However, courts have held that in ascertaining quantum meruit, elements such as the original retainer agreement between the client and the discharged attorney (Matter of Tillman, 259 NY 133, 135; Brill v Chien Yuan Kao, 61 AD2d 1000, 1001), as well as other factors, such as the size of the recovery (Reubenbaum v B. & H. Express, 6 AD2d 47, 49), may *784be taken into account in determining an appropriate fee. Although concededly the Tillman and Brill cases involved disputes between attorney and client, while in Reubenbaum the fee contest was between incoming and outgoing attorneys of record, it seems reasonable to weigh the same factors in this case.
In the case at bar, Murtaugh never commenced an action and never became attorney of record. He is therefore entitled only to compensation based on quantum meruit with consideration given to the terms of his original retainer agreement with the plaintiffs and the substantial size of the recovery. Murtaugh testified at the hearing that he devoted approximately 100 hours to the case, performing a proper investigation of the accident, arranging for the appointment of conservators, and attending to a variety of tasks. A fee of $35,000 for such services would appear to be reasonable. Mr. Murtaugh should therefore be paid that sum with interest within 30 days after service upon the Lipsig firm of a copy of the amended judgment entered in accordance herewith. Kunzeman, J. P., Rubin, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902673/ | In a matrimonial action in which the parties were divorced by judgment dated July 10, 1981, the plaintiff wife appeals, as limited by her notice of appeal and brief, from so much of an order and modified judgment (one paper) of the Supreme Court, Queens County (Fasullo, J. H. O.), entered February 10, 1987, as limited her award of counsel fees to $2,000 for her prosecution of a motion to enforce the terms of the parties’ separation agreement and in defense of the defendant husband’s cross motion to modify the judgment of divorce.
Ordered that the order and modified judgment is modified, on the law and the facts, to increase the award of counsel fees including disbursements to $10,110.06 subject to credit for any amounts previously paid by the defendant husband for counsel fees incurred by the plaintiff with respect to the instant motion and cross motion; as so modified, the order and modified judgment is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Queens County, for a determination as to the amounts previously paid by the defendant for counsel fees incurred with respect to the instant motion and cross motion.
The Judicial Hearing Officer’s award of $2,000 in counsel fees to the plaintiff on her successful prosecution of the instant motion and in defense of the defendant’s cross motion, *785inter alia, to vacate the spousal support provision of the judgment of divorce was inadequate. The award of counsel fees was made pursuant to the terms of the parties’ agreement which is incorporated in their judgment of divorce and the question of whether an award should be made was not left to the discretion of the Judicial Hearing Officer (see, Canick v Canick, 122 AD2d 767).
The parties stipulated that the reasonableness of the award would be established upon submission of attorney’s affirmations as to value and services. Therefore, no hearing was or is required (Melone v Melone, 113 AD2d 745). Upon our review of the unopposed affirmations setting forth the services rendered, and considering only those items which relate to the prosecution of the plaintiffs motion for enforcement and in defense of defendant’s cross motion, the affirmations being particularly detailed, we determine that the plaintiff is entitled to counsel fees in the amount of $10,110.06, which includes disbursements. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902674/ | Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered February 3, 2012, which denied plaintiff’s motion to vacate a default judgment, and denied sub silentio defendant’s request for attorneys’ fees and sanctions, unanimously modified, on the law, plaintiff’s motion granted, and the matter remanded to the motion court for disposition of the underlying motion on the merits, and otherwise affirmed, without costs.
Under the circumstances of this case the motion court erred in finding that there was no excusable default based upon law office failure (see CPLR 2005; compare Perez v New York City Hous. Auth., 47 AD3d 505, 505-506 [1st Dept 2008]).
Plaintiff also demonstrated a meritorious cause of action. Although the subject lease does have a disclaimer of defendant landlord’s ability to deliver possession of the premises on the commencement date, that provision may reasonably be read to be limited to instances of a holdover, construction problems or regulatory failures, outside defendant’s control (cf. Northgate Elec. Corp. v Barr & Barr, Inc., 61 AD3d 467 [1st Dept 2009]). Indeed, to read the clause to excuse failure to deliver possession for any reason, including intentional acts of defendant landlord to breach the lease, would render the contract illusory (see *423Souveran Fabrics Corp. v Virginia Fibre Corp., 37 AD 2d 925 [1st Dept 1971]; compare Pacific Coast Silks, LLC v 247 Realty, LLC, 76 AD3d 167 [1st Dept 2010]).
Moreover, plaintiffs claim that the failure to return its first month’s rent and security deposit constitutes unjust enrichment is not barred by the voluntary payment doctrine, which requires that plaintiff make the payment at issue without any alleged fraud or mistake (see Eighty Eight Bleecker Co., LLC v 88 Bleecker St. Owners, Inc., 34 AD3d 244, 246 [1st Dept 2006]). Here, however, plaintiff alleges that it made the payment not knowing that another tenant had a conflicting lease allowing it to continue in the premises.
Defendant is correct that plaintiff is barred from seeking lost profits, because it never took possession of the premises (see Dodds v Hakes, 114 NY 260, 265 [1889]). However, this does not warrant the conclusion that plaintiff does not have a meritorious cause of action.
In view of the foregoing, defendant is not entitled at this stage of the proceedings to an award of attorney’s fees under the lease, or to sanctions under 22 NYCRR 130-1.1. Concur— Friedman, J.P., DeGrasse, Richter, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902677/ | Judgment, Supreme *424Court, New York County (Carol E. Huff, J.), entered August 19, 2011, upon a jury verdict awarding plaintiff, inter alia, the principal amount of $400,000 for future pain and suffering over 20 years, unanimously affirmed, without costs.
Plaintiff was injured when, while attempting to board defendant’s bus, the doors closed on her and the bus started to drive away before coming to an abrupt stop. As a result, plaintiff suffered a herniation to her lumbar spine and two bulging discs to her cervical spine, resulting in radiculopathy, for which surgery was recommenced. Compensation for plaintiffs injuries did not deviate materially from what is reasonable compensation. Concur—Tom, J.P, Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902678/ | an action to recover damages for personal injuries, the defendant Community Hospital of Brooklyn (hereinafter the hospital) appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated May 18, 1987, as granted that branch of the plaintiff’s motion which was to amend her complaint insofar as it is asserted against the hospital to assert a claim for the decedent’s conscious pain and suffering and granted another motion brought by her for leave to serve an amended bill of particulars to include the decedent’s personal injuries, and the *789plaintiff cross-appeals from so much of that same order as denied that branch of her motion which was to amend the ad damnum clause of the complaint to include a claim for punitive damages against the defendant hospital.
Ordered that the order is affirmed, insofar as appealed from, and cross-appealed from without costs or disbursements, and the plaintiff’s time to serve an amended complaint and bill of particulars is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry.
On May 7, 1985, the plaintiff’s decedent, a 79-year-old comatose patient who had been institutionalized at the defendant hospital since February 10, 1985, was allegedly assaulted by the defendant James McCauley, an orderly employed by the hospital. Although the incident was witnessed by a registered nurse who was making her intravenous rounds at the time, it was not reported to hospital officials until two days later due to the nurse’s expressed fear of coming forward. Both the family of the patient and the police were apprised of the incident at that time and the matter was referred to the sexual abuse unit for investigation. When hospital officials confronted him with the aforesaid allegations, the defendant McCauley chose to resign rather than face being discharged from his employment. The patient died at the defendant hospital on May 18, 1985.
An action to recover damages based on the decedent’s personal injuries and wrongful death and the hospital’s alleged negligence in its hiring practices was thereafter commenced by the plaintiff, the decedent’s daughter and administratrix. In response to the hospital’s demand for a bill of particulars with respect to the injuries claimed, the plaintiff’s sole response was "Wrongful death”. After her initial motion for leave to serve an amended complaint was denied without prejudice to renew upon the completion of discovery, the plaintiff brought two separate motions, inter alia, for leave to serve an amended complaint and bill of particulars. The order appealed from granted that branch of the plaintiff’s first motion which was for leave to serve an amended complaint, denied that branch of that motion which was to amend the ad damnum clause of the complaint to include a claim for punitive damages against the defendant hospital, and granted her separate motion for leave to serve an amended bill of particulars to include allegations of the decedent’s pain and suffering.
It is well settled that motions to amend pleadings and bills of particulars shall be freely given upon such terms as may be just with the decision to allow or disallow the amendment *790committed to the court’s discretion (CPLR 3025 [b]; Barnes v County of Nassau, 108 AD2d 50, 52; see also, Koch v St. Francis Hosp., 112 AD2d 142; Scarangello v State of New York, 111 AD2d 798). "While a court has broad discretion in deciding whether leave to amend should be granted, it is considered an improvident exercise of discretion to deny leave to amend in the absence of an inordinate delay and a showing of prejudice to the defendant” (Scarangello v State of New York, supra, at 799). "It is likewise true that the merits of a proposed amendment will not be examined on the motion to amend—unless the insufficiency or lack of merit is clear and free from doubt” (Norman v Ferrara, 107 AD2d 739, 740; accord, Island Cycle Sales v Khlopin, 126 AD2d 516, 518).
In the instant case, the hospital was clearly not prejudiced by the plaintiffs amendments concerning the decedent’s personal injuries. As aptly recognized by the trial court, "[t]he original complaint, while inarticulately drawn, gave notice of allegations that Angelina Ferretti [the decedent] became 'sick, sore, lame, and disabled’ as a result of the alleged assault”. The plaintiffs applications to serve an amended complaint and bill of particulars with respect to the decedent’s injuries did not constitute an attempt to add new causes of action (cf., Simino v St. Mary’s Hosp., 107 AD2d 800), but, rather, were intended to add more detailed language with respect to previously asserted allegations of personal injury. Without passing on the merits of the proposed amendments, we conclude that the Supreme Court, Kings County, did not abuse its discretion in granting the plaintiff leave to amend her complaint and bill of particulars to this extent.
With respect to the application to amend the ad damnum to include a claim for punitive damages, however, the amendment sought to be interposed was palpably insufficient as a matter of law (Island Cycle Sales v Khlopin, supra, at 518). The record contains no evidence that the hospital was guilty of gross recklessness or intentional, wanton or malicious conduct aimed at the public generally (see, Gravitt v Newman, 114 AD2d 1000, 1002; Guion v Associated Dry Goods Corp., 43 NY2d 876, 878, rearg denied 44 NY2d 732). Even if McCauley’s Marine Corps record had been obtained by the hospital prior to its decision to hire him, there was no indication thereon of any criminal propensities. Moreover, the record bears no indication whatsoever that the defendant hospital at any point authorized, participated in or ratified McCauley’s conduct (see, Murray v Long Is. R. R. Co., 35 AD2d 579, affd 28 NY2d 849). Under the circumstances, the arguments raised *791on the plaintiffs cross appeal are without merit. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902679/ | In an action for an injunction, the defendants appeal from an order of the Supreme Court, Suffolk County (Gerard, J.), entered June 11, 1987, which, inter alia, granted the plaintiffs’ application for a preliminary injunction (1) enjoining the defendants from permitting in excess of 201 people on the second floor of the premises and (2) ordering the removal of certain structures from the defendant’s premises and ordering that in the event the structures were not removed by a certain time, the premises are to be closed and further use of the premises shall be enjoined.
Ordered that the order is affirmed, with costs.
The record reveals that the defendants constructed additions to the outside deck of their premises which consisted of a gazebo, clam bar, flower boxes, benches, tables, chairs and an iron railing which were not existing or approved at the times when the building permit and certificate of occupancy for the premises were issued. The previous certificate of occupancy issued to the defendants was revoked on May 26, 1987. The defendants have continued to operate the premises without a new certificate of occupancy.
The testimony adduced at the hearing on this matter indicates that the Code Enforcement Officer and the Building Inspector of the plaintiff village entered the defendants’ premises on numerous occasions and that on each such occasion found the number of persons present on the second floor to far exceed the number permitted by the original certificate of occupancy. Moreover, they testified that the overoccupancy of the premises and the structures on the deck created a condition hazardous to the public health, safety and welfare by blocking access to the street.
We agree with the Supreme Court that the plaintiffs have met their burden of establishing their entitlement to the relief requested (see, CPLR 6301; County of Orange v Lockey, 111 AD2d 896). Section 248-260 of the Code of the Village of Babylon provides that "the Building Inspector shall revoke any Certificate of Occupancy issued for any premises upon his inspection and his finding that said premises or the use thereof fail to comply in all respects with the provisions of the chapter of that said premises, in his determination and his judgment, are maintained in a condition dangerous, unsafe and hazardous to life, limb and health”.
*792A town has the right pursuant to its police powers, to prevent conditions dangerous to public health (Matter of Svenningsen v Passidomo, 95 AD2d 833, affd 62 NY2d 967). "[I]t is not for [the] court to determine finally the merits of an action upon a motion for preliminary injunction; rather, the purpose of the interlocutory relief is to preserve the status quo until a decision is reached on the merits * * * Viewed from this perspective, it is clear that the showing of a likelihood of success on the merits required before a preliminary injunction may be properly issued must not be equated with the showing of a certainty of success” (Tucker v Toia, 54 AD2d 322, 325-326).
We, therefore, find that the Supreme Court did not abuse its discretion in granting the plaintiffs’ application for a preliminary injunction (Gambar Enters. v Kelly Servs., 69 AD2d 297). Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903270/ | In an action to recover damages for libel, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Balletta, J.), dated April 7, 1987, as denied those branches of their motion which sought summary judgment dismissing the plaintiffs second, third and fourth causes of action.
Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion is granted in its entirety.
The plaintiff is the step-grandfather of a 14-year-old girl that he allegedly sexually abused. These allegations of sexual abuse were brought to the attention of the defendant Caso, a social worker employed by the defendant school district who worked in the school attended by the allegedly abused child. *558Pursuant to Social Services Law §§ 413 and 415, the defendant Caso telephoned the Child Protective Central Service Registry in Albany and filed a written report with the Nassau County Department of Child Protective Services, informing these agencies of the allegations of abuse. Additionally, the defendant Caso forwarded her file on the subject student to the school’s internal Committee on the Handicapped which had become involved in the student’s case due to prior behavioral and academic problems. Ultimately, the Department of Social Services determined the allegations of sexual abuse to be unfounded and no action was taken to protect the child as none was deemed necessary. Thereafter, the plaintiff commenced the instant action seeking to recover damages for the publications of allegedly libelous material in the report.
The plaintiff’s complaint sets forth four causes of action. The first sought damages for the publication of the report to the Nassau County Department of Child Protective Services. The second, third and fourth causes of action sought recovery for the four subsequent alleged republications of the report to the school’s Committee on the Handicapped. In response, the defendants asserted, inter alia, the affirmative defense of privilege.
The defendants moved for summary judgment dismissing the complaint. The court granted that branch of the motion which sought summary judgment dismissing the plaintiff’s first cause of action, finding the publication of the report to the appropriate child protective authorities to be absolutely privileged, thereby immunizing all the defendants from civil liability with respect to that publication (see, Social Services Law §§ 413, 415, 419). The court, however, denied those branches of the defendants’ motion which sought summary judgment dismissing the remaining causes of action, finding that the report should not have been circulated to the Committee on the Handicapped as it was not an authorized recipient pursuant to Social Services Law § 424-a and 18 NYCRR 432.7. Accordingly, any qualified privilege which might otherwise attach was destroyed by delivery of the alleged defamatory material to an unauthorized recipient. This determination, however, was in error.
A qualified privilege serves to negate any presumption of implied malice or ill will flowing from a defamatory statement. Therefore, the plaintiff bears the burden of proving that the statement was indeed motivated by malice (see, Toker v Pollak, 44 NY2d 211, 219). Such a privilege may attach to a bona fide communication upon any subject matter in which *559the communicating party has an interest or in reference to which he has a duty although the information might otherwise be defamatory (see, Stukuls v State of New York, 42 NY2d 272, 278-279; Byam v Collins, 111 NY 143, 150). However, for the privilege to attach, the recipient of the communication must have a corresponding interest or duty (see, Kaplan v MacNamara, 116 AD2d 626, lv denied 68 NY2d 607). Contrary to the opinion of the Supreme Court, the defendant school district and its Committee on the Handicapped have the requisite corresponding interest or duty. Education Law § 4402 (3) (a) imposes upon such committees the duties, inter alia, of reviewing all relevant information, pertinent to each handicapped child and, further, paragraph (b) directs the committee to make recommendations as to appropriate educational programs best suited to help the handicapped child. The plaintiffs step-granddaughter was such a handicapped child and clearly the allegations of sexual abuse constituted relevant information pertinent to her and necessary for the Committee’s informed recommendation of a suitable program. Thus, the information, although otherwise defamatory, was qualifiedly privileged in the hands of this authorized recipient (cf., Schwartzberg v Mongiardo, 113 AD2d 172, 175, lv denied 68 NY2d 602).
Clearly, the defendant Caso had a moral and social duty to disclose this information to the Committee on the Handicapped (see, Kilcoin v Wolansky, 75 AD2d 1, 6, affd 52 NY2d 995). Given the complete absence of any proof of malice or ill will on the part of any of the defendants, a qualified privilege attached thereby immunizing these defendants from civil liability and accordingly their motion for summary judgment should have been granted in toto (see, Shapiro v Health Ins. Plan, 7 NY2d 56; Green v Kinsella, 36 AD2d 677). Certainly the communication of this type of information, seeking to protect the health and safety of a child, is socially advantageous and should be encouraged. When such information, although ultimately proven false, is, in good faith, placed in the hands of an authorized recipient a qualified privilege must attach (see generally, Prosser and Keeton, Torts § 115 [5th ed]). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902682/ | In an action to recover for property damages, the defendant Port Authority of New York and New Jersey (hereinafter Port Authority) appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), entered December 22, 1986, which granted the plaintiff’s motion for leave to serve a late notice of claim nunc pro tunc and denied the Port Authority’s cross motion to dismiss the complaint insofar as it is asserted against it.
Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion is denied, the Port Authority’s cross motion is granted, and the complaint is dismissed insofar as it is asserted against the Port Authority.
In this case it is undisputed that a notice of claim was *796served on the Port Authority on October 6, 1986, and less than 60 days later, on November 21, 1986, this action was commenced by service of a summons and complaint. The Port Authority has waived immunity and consented to be sued only in the event that certain jurisdictional conditions precedent are performed (see, L 1950, ch 301, §§ 1-7; Trippe v Port of N. Y. Auth., 14 NY2d 119, 123-124; Savino v Demiglia, 133 AD2d 389). Among these conditions is the requirement that "a notice of claim shall have been served upon the port authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced” (L 1950, ch 301, § 7).
Failure to satisfy this condition results in a withdrawal of consent and compels the dismissal of the action for lack of subject matter jurisdiction (see, Giannone v Port Auth., 127 AD2d 818, 819: Luciano v Fanberg Realty Co., 102 AD2d 94). Accordingly, the Port Authority’s motion to dismiss the complaint insofar as it is asserted against it must be granted. Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902683/ | Order, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about June 28, 2011, which, insofar as appealed from, determined that respondent father’s consent was not required for the adoption of the subject child, unanimously affirmed, without costs.
The mother and the caseworker testified that the father did not provide any financial support for the child, although he was receiving Supplemental Security Income, and that he did not contact or communicate with the child at any time (see Domestic Relations Law § 111 [1] [d]; Matter of Phajja Jada S. [Toenor Ann S], 86 AD3d 438 [1st Dept 2011], lv denied 17 NY3d 716 [2011]). There exists no basis to disturb the court’s rejection of the father’s unsubstantiated accounts of the financial support he provided to the child’s caretakers (see Matter of Irene O., 38 NY2d 776 [1975]), and, even by the father’s own account, his contact with the child over a number of years was substantially nonexistent. Concur—Tom, J.E, Sweeny, Moskowitz, ManzanetDaniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2076630/ | 457 N.E.2d 207 (1983)
Troy Frederick BRIDGES, Appellant,
v.
STATE of Indiana, Appellee.
No. 882S317.
Supreme Court of Indiana.
December 30, 1983.
*208 Nancy L. Broyles, McClure, McClure, & Kammen, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
PIVARNIK, Justice.
Defendant-Appellant Troy Frederick Bridges was convicted by a jury in the Marion Superior Court of class C felony attempted burglary, class D felony theft and two counts of class C felony burglary. The jury further found Appellant to be a habitual criminal. The trial court subsequently sentenced Appellant to a composite term of thirty-five years imprisonment. Appellant now directly appeals and raises the following three issues:
1. whether there was sufficient evidence of probative value to support Appellant's theft conviction;
2. whether the trial court erred by admitting into evidence State's Exhibits 5 and 8; and
3. whether the trial court erred by refusing to excise a portion of Appellant's extra-judicial statement regarding certain of Appellant's other criminal activity.
The facts adduced at trial indicate that during the early morning hours of January 19, 1982, several police officers responded to a radio call about a possible burglary in the building located at 3636 East Roosevelt Avenue, Indianapolis. Upon arriving outside said building, Detective Reardon observed *209 in the snow footprints leading to a rear chimney. Reardon climbed up the chimney and found two radios and a space heater on the flat roof. These items had been removed from the premises of Telav Enterprises, Inc., one of several businesses located in the building at 3636 East Roosevelt. While on the roof, Reardon observed additional footprints leading to an open second floor window. Reardon climbed through the window and, together with Officer Robertson, discovered Appellant and another man in an adjacent room. The officers found a flashlight, a pair of gloves, a sledgehammer and a crow-bar in the room. Further investigation revealed that several large holes had been made in the walls of Telav Enterprises and nearby R & B Battery Company. It was also discovered on January 19, 1982, that a large hole had been made in the south wall of Samuel's Market, which is located at 2815 East 25th Street, Indianapolis. Appellant was charged with and convicted of the burglary of Telav Enterprises, the burglary of Samuel's Market, the attempted burglary of R & B Battery and the theft of property from Telav Enterprises.
I
Appellant was charged with theft as follows:
"did unlawfully and knowingly exert unauthorized control over the property of TELAV ENTERPRISES, INC., DOING BUSINESS AS TELAV, INC., to wit: TWO (2) RADIOS AND AN ELECTRIC HEATER, with intent to deprive TELAV ENTERPRISES, INC., DOING BUSINESS AS TELAV, INC. of any part of the value or use of said property, ..."
He now contends that there was insufficient evidence from which the jury could find him guilty of theft since the State failed to prove that Telav, Inc., owned the allegedly stolen property. Appellant points out that the evidence established that Sue Jennings and a co-worker at Telav were the actual owners of the two radios and one space heater. The State does not, however, have to prove ownership "in the title sense" to obtain a theft conviction. Gregory v. State, (1973) 259 Ind. 652, 291 N.E.2d 67, reh. denied. We previously have held:
"it need not be proven that the absolute ownership of the property allegedly taken be in the person alleged to be the owner, but it is sufficient if the evidence shows him to be in lawful possession of the property. It is of little concern whether he holds as bailee, agent, trustee, or personal representative."
Gunder v. State, (1968) 250 Ind. 689, 693, 238 N.E.2d 655, 658, reh. denied; see also Richardson v. State, (1966) 247 Ind. 610, 220 N.E.2d 345; Dowdell v. State, (1981) Ind. App., 429 N.E.2d 1; Schacke v. State, (1975) 164 Ind. App. 153, 326 N.E.2d 856. Sue Jenning's testimony established that although she and another woman owned the allegedly stolen property, Telav, Inc., rightfully possessed it when it was taken without anyone's permission. The property continuously remained at Telav where it was used for the benefit of Telav workers. We accordingly find that Telav's rightful possession was sufficient to satisfy the ownership requirement implicit in our theft statute.
II
During trial, Sue Jennings was asked if she recognized what was shown in a photograph introduced as Exhibit 5. She responded affirmatively and identified the property depicted as her radio, her heater and the radio of a co-worker. Officer Robertson subsequently testified that Exhibit 5 was a photograph of the allegedly stolen property found on the roof at 3636 East Roosevelt. He further testified that he took the photograph in the police property room on January 27, 1982. Exhibit 5 was then admitted into evidence. This Court previously has held that there are no "magic words" which must be used to establish that a photograph is a true and accurate representation of what it is intended to portray. Stewart v. State, (1982) Ind., 442 N.E.2d 1026. Moreover, the determination of whether or not certain photographic evidence is admissible is a discretionary matter for the trial court and the trial court's *210 decision will not be reversed absent a showing that the trial court abused its discretion. Hope v. State, (1982) Ind., 438 N.E.2d 273. We now find that the trial court properly admitted Exhibit 5 since the State laid a proper foundation for its admission.
A photograph introduced as Exhibit 8 was shown to Detective Reardon for identification purposes during trial. He specifically testified:
"It is the heater, along with two radios, located on the south side of the chimney, with my initials on the back and the date that I took the picture, January 19, 1982."
Though Reardon was asked if the photograph was "a true and accurate representation" of the way the items looked when found upon the roof, no response was recorded by the court reporter. Notwithstanding that perhaps Reardon nodded his head or gave an inaudible response, Appellant now argues that a proper foundation was not laid for the admission of Exhibit 8. We note that Appellant objected as follows at trial:
"[Prosecutor]: Move to admit State's Exhibit 8.
The Court: Mr. Hurley [Appellant's trial counsel]?
Mr. Hurley: Judge, we would object on the grounds that, uh, no foundation has been laid to offer these. The detective has not testified exactly when the pictures were taken.
The Court: All right, we'll show then, uh, State's 8 is admitted over objection. That's overruled."
Detective Reardon's testimony was that he took the photograph identified as Exhibit 8 on January 19, 1982, therefore Appellant's objection was unfounded and properly overruled. By offering no other specific objection to the admission of Exhibit 8, Appellant has waived further review of this issue.
III
During the day following his early morning arrest, Appellant gave to Detective Todd a recorded statement regarding the burglaries at 3636 East Roosevelt. During the tender of that statement, Appellant mentioned an attempted burglary which he had not been questioned about or charged with. Appellant specifically informed:
"Okay, about somewhere between 7 and 8:00 [p.m.], we went to Stan's Pawn Shop on 38th and Keystone Drive, and we attempted to go through the back wall of the building. Once we were through the wall, the building alarm went off and so we left. A little later we went to Sam's Market on 25th Street and we attempted to go through the back wall there too. We used a sledge hammer and the alarm went off. When the alarm went off, we left. Immediately after that we went to, we went to the battery company and attempted to get in. We went up the side of the chimney, through an open window on the roof, and we went inside and checked it out to see if anyone was there. Then we broke through the wall at the bottom of the stairwell and went into what was a laundry, and once we got inside the laundry we looked around and we found different items. I took a radio, two radios and a heater, and took them back up to the roof. I went back downstairs and at that time we tried to go through the wall to the battery company... ."
During trial but outside of the jury's presence, a hearing was held upon Appellant's Motion to Suppress his extra-judicial statement. The trial court ultimately overruled Appellant's Motion finding that Appellant had voluntarily given his extra-judicial statement. The trial court also refused to delete the portion of Appellant's statement which dealt with Appellant's attempted burglary of Stan's pawn shop. Appellant now contends that the portion of his statement pertaining to his prior criminal act was inadmissible and unduly prejudicial. It is the general rule that evidence of criminal activity other than that for which a defendant is charged is inadmissible unless offered to show intent, motive, purpose or *211 identity or to demonstrate the common plan or scheme of criminal activity from which the defendant originated the charged crime. Malone v. State, (1982) Ind., 441 N.E.2d 1339. Evidence of other criminal activity is also admissible "where the witness' testimony is necessary to complete the story of the criminal transaction ... or where evidence may reveal the accused's state of mind." McCormick v. State, (1982) Ind., 437 N.E.2d 993, 996. In the instant case, Appellant's statement regarding his attempted burglary of the pawn shop clearly demonstrates the common scheme of criminal activity from which Appellant perpetrated the burglaries at 3636 East Roosevelt. The trial court accordingly did not err by refusing to excise the portion of Appellant's statement which mentioned his prior criminal activity.
The trial court is in all things affirmed.
GIVAN, C.J., and DeBRULER, HUNTER and PRENTICE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902684/ | In a subrogation action to recover property damages, the defendant Port Authority of New York and New Jersey appeals from an order of the Supreme Court, Westchester County (Buell, J.), entered November 21, 1985, which denied its motion to dismiss the complaint insofar as it is asserted by the plaintiff American Motorist Insurance Company.
Ordered that the order is reversed, on the law, with costs, the defendant’s motion is granted, the complaint insofar as asserted by the plaintiff American Motorist Insurance Company is dismissed, and the cause of action of the remaining plaintiffs is severed.
This is a subrogation action brought by Lumbermens Mutual Casualty Company (hereinafter Lumbermens) and American Motorist Insurance Company (hereinafter American), as subrogees, for alleged damages arising out of the theft of the insured’s automobile from a LaGuardia Airport parking lot on June 25, 1982. Lumbermens, which insured the contents of the automobile, timely commenced an action on June 8, 1983. Thereafter, Lumbermens was granted leave to amend its complaint to add American, the insurer of the vehicle, as a named party plaintiff. The defendant was served with the amended complaint on June 5, 1985.
*797The defendant has waived immunity and consented to be sued only in the event that certain jurisdictional conditions precedent are complied with (see, L 1950, ch 301, §§ 1-7; Trippe v Port of N. Y. Auth., 14 NY2d 119, 123-124; Savino v Demiglia, 128 AD2d 858). One of these conditions precedent is that the action be commenced within one year after the cause of action has accrued (L 1950, ch 301, § 7).
Failure to satisfy this condition results in a withdrawal of consent and compels the dismissal of the action for lack of subject matter jurisdiction (see, Giannone v Port Auth., 127 AD2d 818, 819; Luciano v Fanberg Realty Co., 102 AD2d 94). Accordingly, the defendant’s motion must be granted. Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902686/ | Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of Department of Motor Vehicles, dated September 23, 1986, which (1) affirmed findings made after a hearing that the petitioner had violated (a) Vehicle and Traffic Law § 398-e (1) (j) by know;ingly issuing a false and misleading estimate and (b) Vehicle and Traffic Law § 398-e (1) (k) by engaging in a course of conduct which unreasonably impeded or delayed a consumer’s right to a fair recovery in an insurance claim case, and (2) imposed a $700 civil penalty and five-day suspension of the petitioner’s drive-in appraisal facility license.
Adjudged that the determination is confirmed and the proceeding is dismissed, on the merits, with costs.
On this record, there was substantial evidence to support the Commissioner’s determination as to each of the violations (see, Matter of Hannon v Cuomo, 52 NY2d 775). Furthermore, in light of both the limited scope of appellate review in such matters (see, Matter of Pell v Board of Educ., 34 NY2d 222) and the petitioner’s prior record, we cannot agree with the petitioner that the measure of punishment imposed upon it was so disproportionate to the charge sustained "as to be shocking to one’s sense of fairness” (Matter of Stolz v Board of Regents, 4 AD2d 361, 364; see, Dunn Appraisal Co. v Foschio, 94 AD2d 695; Government Employees Ins. Co. v Commissioner of Motor Vehicles, 94 AD2d 695). Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902688/ | In an action for a divorce and ancillary relief, the defendant husband appeals from (1) a judgment of the Supreme Court, Nassau County (Levine, J. H. O.), dated October 20, 1986, which granted him a divorce and incorporated, but did not merge, the terms of the parties’ stipulation of settlement; and (2) an order of the same court (Balletta, J.), dated March 13, 1987, which denied his motion to set aside the judgment of divorce.
Ordered that the appeal from the judgment dated October 20, 1986 is dismissed, as it was entered upon the parties’ stipulation of settlement and is in favor of the defendant (see, CPLR 5511; Baecher v Baecher, 95 AD2d 841); and it is further,
Ordered that the order dated March 13, 1987 is affirmed; and it is further,
Ordered that the plaintiff wife is awarded one bill of costs.
The Supreme Court did not err in denying the defendant’s motion to vacate the parties’ judgment of divorce. In the first instance, contrary to the defendant’s contention, the entry of the judgment of divorce more than 60 days after the court’s decision did not constitute an abandonment of the action since "good cause” existed for the delay (see, 22 NYCRR 202.48 [a], [b]). In fact, the record indicates that the lengthy delay was directly related to the defendant’s dilatory tactics. Moreover, the defendant’s unsubstantiated claims of fraud and coercion are insufficient to warrant setting aside the judgment of divorce. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902689/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Renee A. White, J.), rendered on or about January 3, 2012, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902690/ | In an action to recover moneys paid as a transfer fee upon the sale of stock in a cooperative corporation, the defendant appeals from an order of the Supreme Court, Queens County (Hyman, J.), dated December 15, 1986, which granted the plaintiffs motion for summary judgment.
Ordered that the order is affirmed, with costs.
The plaintiff challenges the exaction of a 6% transfer fee by the defendant cooperative corporation upon the closing of the sale and assignment of the plaintiffs shares in an apartment of the subject premises. The issue presented is whether the plaintiffs shares qualify as "unsold shares” which are exempted from the transfer fee by the terms of the corporate bylaws. The Supreme Court answered in the affirmative. We agree.
*800The relevant provisions of the bylaws, proprietary lease, offering plan and amendment thereto, read together (see, Fe Bland v Two Trees Mgt. Co., 66 NY2d 556, 563; 330 W. End Apt. Corp. v Kelly, 66 NY2d 556, 563) present no question of fact and therefore were properly interpreted by the court as a matter of law (see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285). The proprietary lease and offering plan provide that "unsold shares” retain their character as such, regardless of transfer, until an individual purchases the same and actually occupies the apartment to which the shares are allocated. Inasmuch as the plaintiff or his family never occupied the apartment, the shares remained "unsold” and were therefore exempt from the transfer fee. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1521358/ | 674 F. Supp. 1330 (1987)
ITT INDUSTRIAL CREDIT COMPANY, Plaintiff,
v.
D.S. AMERICA, INC., Defendant.
No. 86 C 7446.
United States District Court, N.D. Illinois, E.D.
December 7, 1987.
Alexander Terras, Mark P. Cohen, Epton, Mullin & Druth, Ltd., Chicago, Ill., for plaintiff.
Gerald L. Morel, Nancy E. Sasamoto, Masuda, Funai, Eifert & Mitchell, Ltd., Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
SHADUR, District Judge.
ITT Industrial Credit Company ("ITT") sues D.S. America, Inc. ("D.S. America") to *1331 enforce the parties' December 28, 1984 Recourse/Repurchase Agreement (the "Agreement"). As contemplated by the Agreement (though the parties dispute whether the financing transaction next referred to followed the proper form), ITT financed the purchase of printing equipment from D.S. America by Color Company ("ColorComp"). If the Agreement in fact applies, D.S. America is obligated to have provided recourse for ITT for a three-year period in case of ColorComp's default, an event that has come to pass.
Both ITT and D.S. America have moved under Fed.R.Civ.P. ("Rule") 56 for summary judgment on the one-count Complaint.[1] For the reasons stated in this memorandum opinion and order, both motions are denied.[2]
Applicable Standards
Whenever cross-motions for summary judgment are involved, this Court must take a dual perspective: Each movant has the burden of establishing the absence of any genuine issue of material fact on its own motion (Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)). To determine the existence of any material factual dispute, this Court must (on each motion) draw "only reasonable inferences, not every conceivable inference," in favor of the nonmovant (DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326 (7th Cir.1987)). "Materiality" of a dispute depends on the fact being outcome-determinative (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)):
Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.
Once a movant has met its burden of showing no genuine issue, the nonmovant can then establish such an issue only through evidentiary submissions authorized by Rule 56, not merely by contrary allegations in its pleadings (Celotex, 106 S.Ct. at 2553).
As for the applicable law, this opinion will look to Illinois. That need not necessarily have been the case: Only D.S. America is Illinois-based, with ITT having its home office in Missouri and ColorComp being a Texas company. But both litigants have focused on Illinois lawand where (as here) the parties have failed to raise the choice of law issue and have treated the forum's substantive law as controlling, that is viewed as a stipulation as to the applicable law (National Association of Sporting Goods Wholesalers, Inc. v. F.T.L. Marketing Corp., 779 F.2d 1281, 1284-85 (7th Cir. 1985)).[3]
*1332 Facts
In 1984 D.S. America, a supplier of lithographic and electronic arts equipment, agreed to sell one of its Model SG-818 Dot Scanners to printing company ColorComp. ColorComp needed financing, so D.S. America referred it to ITT, a commercial finance company, and negotiations ensued.
As a condition of its providing financing, ITT asked D.S. America to underwrite a three-year period of ColorComp's payments if the latter defaulted on its obligations (ITT had originally wanted recourse rights for the full term of ColorComp's obligation five yearsbut settled for a shorter term). ITT sent D.S. America the one-page letter-form Agreement, which was signed by D.S. America's Executive Vice President Yoshiaki Satoh ("Satoh") and then dated December 28, 1984, the same day ITT and Colorcomp executed the financing documents.
Under the ITT-drafted form Agreement, the underlying transaction was described as ITT's purchase of the equipment, followed by its lease to ColorComp. Its pertinent provisions (in fact, almost the entire document) read:
In order to induce you [ITT] to purchase the equipment above described[4] and to enter into a Lease Agreement with respect to said equipment between you as Lessor and the above named Lessee [ColorComp], the undersigned [D.S. America] hereby agrees that in the event of any default of the Lease Agreement which shall include: failure by Lessee to make any scheduled rental payment to Lessor within thirty (30) days from the contractual due date, under said lease on the part of Lessee, the undersigned will upon your written request perform one of the following:
1) Purchase of all your interest in the said equipment and your rights as Lessor under the said lease at a price equal to the sum of the entire unpaid lease balance within 60 days of notice of default
-OR-
2) Furnish to you a new Lessee who will assume responsibility for the remaining rental payments. Said Lessee will be acceptable only at your own sole discretion. Furthermore, all necessary information on said Lessee will be provided to you within 45 days of notice of default. In the event Lessor accepts and acknowledges this new Lessee, all conditions of the initial lease will remain in full force and effect including the recourse provision.
In the event of purchase by us under this agreement the purchase price shall be payable to you in cash upon demand by you and you shall not be required to take possession of the equipment from the Lessee or to deliver the same to the undersigned. Upon payment of the purchase price, the undersigned will, at its own expense, take possession of the said equipment wherever the same may be and it is understood that you shall make NO WARRANTY OR GUARANTY of any kind or nature whatever respecting the condition of said equipment or the state of title thereto.
This Agreement shall commence 12-28, 1984 and be in force for a period of three (3) years.
However, the transaction between ITT and ColorComp was not structured as a lease. Instead ColorComp bought the equipment from D.S. America with funds borrowed from ITT, signing an Installment Note and Security Agreement. Rather *1333 than being a titleholder-lessor, then, ITT was a direct lender with a security interest in the collateralthe Scanner and its accessories (Albert Kopczenski ["Kopczenski"] Dep. Exs. 4, 5). ITT also received personal guaranties on the note from ColorComp owners Gerald and Miriam Fields (collectively "Fields") (Kopczenski Dep. Ex. 6). Satoh Aff. ¶ 7 says D.S. America was not told ITT and ColorComp had entered into the installment loan and security arrangement instead of a finance lease.[5]
ITT filed UCC financing statements with the State of Texas in December 1984 and with Harris County, Texas on January 21, 1985 (Kopczenski Dep. Ex. 23). Those statements did not describe the Dot Scanner with precision, instead listing numerous pieces of equipment supplied to ColorComp that constitute either components of the Scanner or accessories to the main piece of equipment, the Scanner itself (Joseph Semeraro ["Semeraro"] Dep. 43).
In August 1985 ITT notified D.S. America that ColorComp was in default of its obligations.[6] D.S. America asked for copies of the ITT-ColorComp documentation assertedly expecting to receive lease transaction documents.[7] Kopczenski sent D.S. America's attorney Colin Hara ("Hara") a set of papers including the Installment Note, the Security Agreement and the UCC filings (Kopczenski Dep. Exs. 12, 23).[8]*1334 D.S. America's response (an October 2 letter from Hara, Kopczenski Dep. Ex. 21) was a refusal to provide recourse per the Agreement because (1) no lease existed between ITT and ColorComp and (2) ITT's UCC filings had failed to secure the Scanner.
Negotiations then ensued between ITT and ColorComp to modify the installment note payment schedule. On November 18, 1985 an extension agreement was signed that (1) suspended payments on the note until April 1986, (2) pushed back the note's due date from December 1989 to October 1990 and (3) called for an extension fee of $26,507 payable in four installments, apparently as interest for the period for which principal payments were suspended (Kopczenski Dep. Ex. 14). That extension was agreed to by Fields, but D.S. America was not asked to consent. As part of the extension ColorComp agreed to a revised UCC filing to make ITT's security interest in the Scanner "clearer" (Kopczenski Dep. 63-64). That revision, which expressly identified the Scanner by its serial number and thus cured the original flaw (Kopczenski Dep. Ex. 18), was filed November 20, 1985.
In 1986 ColorComp again went into default on its payments to ITT. ITT's July 18, 1986 letter to D.S. America again called on the latter to provide recourse under the Agreement (ITT Ex. 7). D.S. America replied on July 22 (id.) by simply referring ITT to its earlier refusal ("The letter of October 2, 1985 addressed to Al Kopczenski ... explains our position in this matter"). ITT then negotiated a second extension with ColorComp, which was signed and agreed to by Fields on July 29, 1986 (Kopczenski Dep. Ex. 16). Under that agreement the payments on the note were lowered by something less than 40% for one year, to be increased thereafter to an amount slightly greater than the original monthly payments, while the ultimate due date was pushed back approximately three months. Again D.S. America was not asked to approve the revision (Mortimer Aff. ¶¶ 4-5).
It turned out that ColorComp was beyond saving. It quickly failed to meet its revised obligations to ITT and went into default once more. It filed for Chapter 11 Bankruptcy Code protection September 26, 1986 (ITT Ex. 8). ITT brought this action October 1, 1986.
Parties' Contentions
Resolution of the current motions turns on three arguments advanced by D.S. America:
1. ITT, by not entering into a lease with ColorComp, failed to satisfy a condition precedent to D.S. America's performance under the Agreement.
2. D.S. America's obligation under the Agreement was released by the two extensions of the installment note granted ColorComp without D.S. America's consent.
3. D.S. America's obligation was released by ITT's failure to perfect a security interest in the Dot Scanner, the principal piece of collateral for the transaction.
ITT responds (1) it has satisfied any condition precedent to the Agreement by entering into the Installment Note-Security Agreement transaction with ColorComp, (2) D.S. America is estopped by its own refusal to honor the Agreement from objecting to any later alteration in the original transaction between ITT and ColorComp and (3) ITT has filed adequate financing statements to meet its obligationif anyto secure the collateral. This opinion addresses the three issues in a somewhat different order.[9]
Lease as Condition Precedent
D.S. America's argument (DSA Mem. I 4-10) is quite straightforward. Under the Agreement, ITT was required to lease the *1335 Dot Scanner to ColorComp. No other form of transaction was acceptable. Having failed to satisfy that condition precedent, ITT cannot require D.S. America to perform under the Agreement. To that end D.S. America cites a great deal of black letter law to the effect that a court must enforce the express terms of an unambiguous contract.
There is no disputing the fact that the one-page Agreement contemplated the transaction between ITT and ColorComp would be a lease. It spoke exclusively in terms of "Lease Agreement," "Lessor," "Lessee," "rental payment" and "lease." And of course there is no gainsaying that the actual ITT-ColorComp documentation took a different form.[10]
But that is the beginning rather than the end of the story. Illinois law looks in this kind of situation not solely to the precise terms of the document (even in the ordinarily-strict matrix of defining a guarantor's obligation[11]), but rather to whether the complaining partythe guarantorhas received the true functional equivalent of what the document specifies. Claude Southern Corp. v. Henry's Drive-in, Inc., 51 Ill.App.2d 289, 201 N.E.2d 127 (1st Dist. 1964), leave to appeal denied, 31 Ill. 2d 629 (1965) held a guarantor liable even though the principals executed a lease with a nominal purchase option rather than a conditional sale as the guarantor had expected (id. 51 Ill.App.2d at 300-02, 201 N.E.2d at 133). What controlled the court's decision was that the variation in the nature of the documentation was found nonmaterial and that "the parties received exactly what had been bargained for" (id.). Equally importantly, Claude Southern, id. at 300, 201 N.E.2d at 132 (emphasis added) made it plain that where the parties' intention was at issue (as well as in the more obvious situation of documentary ambiguity), equity courts would look to such functional equivalence rather than resorting woodenly to the pro-guarantor strict construction rule:[12]
But where as here the express terms of the contracts are ambiguous, or there is a question regarding the intention of the parties, the rule of strict construction is not brought into play until the intention is determined from the declarations and conduct of the parties or from the surrounding circumstances.
No other reported Illinois case has dealt with a situation directly tracking this one (as contrasted with cases treating guarantor *1336 relationships in the general sense).[13] Moreover, Claude Southern is in the best equitable tradition that continues to inform the Illinois appellate courts whenever it is viewed as appropriate. Faithful to Erie v. Tompkins traditions, then, this Court will conduct the same kind of inquiry into the equivalence of what was actually done to "what had been bargained for."[14]
What was the bargained-for "Lease Agreement" (that was the term used in the Agreement)? There are three broad categories of leases in the world of commercial financing: operating leases, tax leases and finance leases (Kopczenski Dep. 10-13). In the simplest of terms, an operating lease is the short-term rental of equipment; a tax lease is an arrangement under which the finance company-lessor remains the owner of the equipment and derives any tax benefits such as depreciation; and a finance lease is one in which at the end of the lease term the lessee has the option to purchase the equipment for a nominal amount, generally $1 (id.; Mortimer Dep. 80-81). For obvious reasons, the purely nominal "purchase price" renders the finance lease the functional equivalent of a conditional sale of the equipment by lessor to lessee (see In re Loop Hospital Partnership, 35 B.R. 929, 933-34 (Bankr.N.D.Ill.1983)).
Clearly the type of ITT ColorComp lease called for by the Agreement was a finance lease. D.S. America has really not contested that (Satoh Dep. 47; Mortimer Dep. 80-81). Both parties also emphasize the earlier D.S. America-Colorgraphics-ITT transaction, in which D.S. America signed an identical recourse agreement and ITT and Colorgraphics entered into a five-year finance lease with a $1 purchase option (Satoh Dep. 26-29; Satoh Dep. Exs. 2, 3). This opinion proceeds from that really undisputed premise: Literally read, the Agreement looked to a similar finance lease transaction.
Finance leases and secured installment notes of the type at issue here are essentially identical in substance. Both are really loans of capital from a finance company to an equipment purchaser, with the lessor/creditor advancing the purchase price by paying the equipment seller and then recapturing the price (either with interest or with its economic equivalent in yield) from the lessee/debtor over a fixed period of time, at the end of which the lessor/creditor's security interest in the collateral is released to the lessee/debtor. It may be a slight oversimplification (or perhaps no oversimplification at all) to say, as has ITT, that the transactions are identical except for the language in the documents (Kopczenski Dep. 50). In any event, though, D.S. America has certainly not identified any meaningful difference. Were it able to do so, its guaranty obligation would be discharged (Lawndale Steel Co. v. Appel, 98 Ill.App.3d 167, 174-75, 53 Ill. Dec. 288, 294, 423 N.E.2d 957, 963 (2d Dist.1981)). However, all the evidence demonstrates there was no variation in D.S. America's obligations or rights between those contemplated by the Agreement and those prescribed by the actual documents.
D.S. America's obligations certainly remained the same. Under the Agreement it was committed upon ColorComp's default to purchase ITT's rights against Color-Comp *1337 or to tender a new lessee subject to ITT's approval. Under the secured note transaction, those same obligations could be discharged by purchasing ITT's rights in this instance, by paying off the balance of the note rather than the balance of the leaseor by tendering a new obligor on the note rather than a new lessee. Although D.S. America tries to paint the latter alternative (which necessarily presumes D.S. America's locating another user-customer for the ColorComp equipment) as nonequivalent, its excessively literal arguments are entirely nonpersuasive:
1. ITT would have to approve the new user's creditworthiness in any case (as the Agreement put it, "Said Lessee will be acceptable only at your [ITT's] sole discretion"). If ITT gave its approval for purposes of accepting that new user as a lessee, exactly the same business decision would surely make the new user an equally acceptable obligor on the secured note equivalent of the finance lease.
2. If (as D.S. America's makeweight argument suggests) the new user might prefer a lessee position for some reason, ITT's finance lease format would have been readily available for that purpose. Because ITT had the unfettered right to accept or reject the tendered new user, a decision to accept the latter as a borrower would necessarily implicate the same factors as the acceptance of the new user as lessee under a finance lease.
On the obverse side of the coin, D.S. America's rights also remained the same. Its Agreement obligations discussed in the preceding paragraph may be viewed as alternative rights: D.S. America's option to purchase ColorComp's obligation itself or to offer a new party to take possession of the equipment and assume ColorComp's duties. DSA Mem. II-6 contends it lost the right (a conditional one, it must be remembered) to re-lease the equipment because the Security Agreement required the secured party to sell the collateral upon default. That, however, misreads the Security Agreement, which specifically says (DSA Mem. II Ex. 2, Additional Provision ¶ 4):
Secured Party shall have all the rights and remedies granted to a Secured Party under the Uniform Commercial Code [UCC]....
Under UCC § 9-504 (emphasis added):[15]
A secured party after default may sell, lease or otherwise dispose of any or all of the collateral....
Thus ITT, and D.S. America in its stead, would have had the right to lease the equipment to a new party (one acceptable to ITT) after ColorComp's default.
Apart from Satoh's ipse dixit statement as to the unacceptability of the Agreement to D.S. America without a lease (a subject still to be dealt with), D.S. America's efforts to discredit the secured loan transaction as nonequivalent are less than specious. Mortimer asserted there "could be a number of different ways" in which D.S. America's obligations might be affected by the restructured transaction, but he was unable to cite even a single example of any such effect let alone any prejudicial effect (Mortimer Dep. 88-90). Satoh also said it was important to D.S. America that the ITT-ColorComp transaction be structured as a lease, explaining that its customers are mostly small companies without the capital to arrange their own financing (Satoh Dep. 33-34). That is a total non sequitur in terms of the present question: Satoh offers no explanation as to why a secured installment note with the same payment structure would make any difference whatever to a company with limited capital resources. Indeed, Satoh's point (if any) is vitiated by ColorComp's (as D.S. America's customer) having accepted that alternate type of transaction. Moreover, as already explained, the right was readily available to *1338 D.S. America, following a repurchase, to structure any subsequent transaction involving the equipment as a lease.
In sum, nothing in D.S. America's presentation, except for Satoh's bald assertion of unacceptability, takes this case out of the Claude Southern conclusion that D.S. America "received exactly what had been bargained for." Nor, except for that same bald assertion, do any reasonable and favorable inferences create a genuine issue of material fact to render the Claude Southern rule of law inapplicable. Were it not for Satoh's statement, then, Claude Southern would mandate this Court to conclude as a matter of law that ITT did fulfill any condition precedent to the Agreement by executing the Installment Note and Security Agreement with ColorComp.
All the foregoing discussion has spoken in objective-intent terms: what kinds of rights and duties "had been bargained for" when D.S. America signed the Agreement. But Satoh Aff. ¶ 9 says otherwise in purely subjective terms:
D.S. America would not have signed the Recourse/Repurchase Agreement if it had been told that there was no lease between ITT and The Color Company.
ITT Mem. II-3 n. 3 urges that statement is carefully couched to avoid saying D.S. America would have refused to sign the Agreement if it knew the transaction was going to be written in secured installment note form. And whether or not that is so, Satoh's affidavit must be viewed as suspect. After all, ITT's commitment enabled D.S. America to sell more than $250,000 worth of its product. Is Satoh really saying D.S. America would have foregone that kind of sale, with its undoubted profit component, because of some fancied distinction between the finance lease and the secured note documentation?
Nonetheless Satoh's assertion (however suspect) is enough to avert summary judgment. Anderson, 106 S.Ct. at 2511 reinforces the long-established principle "that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Except in the truly extraordinary situation (Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1179 (7th Cir.1987)) Rule 56 motions may not be resolved on the basis of the court's determinations of credibility (as Anderson, 106 S.Ct. at 2513 put it, "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ...").[16]
Thus the very existence of a fact issue forecloses summary judgment in favor of ITT. Of course it should be obvious D.S. America cannot prevail on its motion once reasonable inferences are drawn in ITT's favor. But consistently with the procedure encouraged (if not in fact mandated) by Rule 56(d), this opinion will go on to treat with the other issues disputed by the parties.
Failure To Secure the Collateral
D.S. America also contends it should be released from any obligation under the Agreement by ITT's failure to file financing statements adequate to secure an interest in the Dot Scanner. ITT offers three responses:
1. It made no warranty as to title to the equipment (ITT Mem. III-4).
*1339 2. In any event, the property description in the filings was adequate to perfect a security interest (id. at 5-6).
3. Even if that were not so, any initial defect in the security interest was cured by the second round of filings (id. at 6-7).
Two of those arguments are meritless, but the third succeeds.
One possible threshold problem though mentioned by neither party should be dispelled first. "Unjustifiable impairment of collateral" is normally a UCC concept, serving to discharge the obligations of a party holding an interest in that collateral (UCC § 3-606(1)(b)). Failure to file financing statements can cause the impairment of collateral triggering such a discharge (see First Bank and Trust Co., Palatine v. Post, 10 Ill.App.3d 127, 132, 293 N.E.2d 907, 910-11 (1st Dist.1973)). But UCC Article 3 and its collateral-impairment provision literally apply only to negotiable instruments, a category that does not include a separate guaranty such as that running from D.S. America (see FDIC v. Hardt, 646 F. Supp. 209, 211-12 (C.D.Ill.1986)).
As already suggested, neither party recognized this question at all so neither addressed the question whether (and whence) ITT had a common-law duty of the same nature. But because the essence of the ITT position must be that it gave D.S. America identical protection to what the latter would have had under the language of the Agreement, anything that would bring the protection below that level would be fatal to ITT. That is enough for the present analysis, without having to probe deeper into Illinois law applicable to all guarantors in general.
Essentially, the first of ITT's three contentions is that any duty to protect the collateral was waived by this provision of the Agreement (capitals in original):
[I]t is understood that you [ITT] shall make NO WARRANTY OR GUARANTY of any kind or nature whatever respecting the conditions of said equipment or the state of title thereto.
To be sure, a guarantor can effectively waive protections to which it is normally entitled (see Jacobson v. Devon Bank, 39 Ill.App.3d 1053, 1056, 351 N.E.2d 254, 256 (1st Dist.1976)). But here ITT cannot take advantage of the exculpatory clause no matter how broadly it can be read given the way in which ITT structured the transaction with ColorComp.
Had ITT executed a finance lease to ColorComp in literal compliance with the Agreement, ITT would have retained title to the collateral. But with ColorComp having both possession and title, ITT's duty to perfect its security interest became vastly more important. In turn that magnified the importance of the purported waiver provision. Were it to be read as ITT now urges, that would create the material difference that D.S. America has been unsuccessful in identifying between a finance lease and a secured installment note. This Court concludes ITT's quoted disclaimer did not cause D.S. America to waive its right to ITT's maintenance of a valid security interest in the Dot Scanner and its accessories.
Next ITT claims its original filing statements contained a description of the collateral sufficient to perfect its security interest. Even under the liberal standard that any description of collateral is adequate if it "reasonably identifies what is described" (UCC § 9-110),[17] ITT's original security filings would fail. They did not list the Dot Scanner itself only some of its components (Kopczenski Dep. 21) or accessories to the principal piece of equipment (Semeraro Dep. 43).
ITT Mem. III-6 contends the statement listing those components "together with all parts, accessories ... improvements and additions thereto" (Kopczenski Dep. Ex. 23) was enough of a description to secure an interest in the Scanner as a whole. To that end it cites Interstate Steel Co. v. Ramm *1340 Manufacturing Corp., 108 Ill.App.3d 404, 64 Ill. Dec. 62, 438 N.E.2d 1381 (4th Dist. 1982). But Interstate Steel, id. at 407, 64 Ill.Dec. at 64, 438 N.E.2d at 1383 merely held the description of certain "property and all accessories, parts and equipment ... used in connection therewith" was sufficient to identify the equipment used to produce the specifically identified "property." That does not support the notion that merely mentioning "improvements and additions" to components of a larger machine is somehow effective to describe that larger machine itself. At best that would pose a factual issue precluding summary judgment. At worst, ITT would lose on the question.
That issue need not be resolved in light of ITT's final argument in this area. DSA Mem. II-8 and ITT Mem. III 6-7 concur that ITT's November 1985 supplement to the filings was effective to perfect its security interest in the Dot Scanner. That interest had not then been subordinated to any other ColorComp creditor. Unjustifiable impairments of collateral occur only when a party's actions result in a third party gaining a superior interest in the collateral (see McHenry State Bank v. Y & A Trucking, Inc., 117 Ill.App.3d 629, 634, 73 Ill. Dec. 485, 489, 454 N.E.2d 345, 349 (2d Dist.1983) ("the failure of a secured party to perfect its security interest in collateral will discharge a guarantor to the extent the secured party's lien is subordinated to that of a third party"); 5 Hawkland & Lawrence, UCC Series § 3-606:11 (Art. 3)). Thus ITT's delay in gaining an effective security interest in the Scanner did not serve to discharge D.S. America's obligations under the Agreement.
D.S. America proffers an empty contention based on the provisions of federal bankruptcy law. Had ColorComp filed for bankruptcy protection within 90 days of ITT's November 1985 security filing, that belated perfection of ITT's security interest could have been set aside as a preferential transfer (see 11 U.S.C. § 547(b)). Thus ITT's delinquent filing did create a potential defect in its security interest but one that did not materialize. Such an inchoate impairment of collateral is no more effective than the original defective filing to discharge D.S. America (cf. Langeveld v. L.R.Z.H. Corp., 130 N.J.Super. 486, 327 A.2d 683, 686 (Ch.Div.1974) (guarantor not discharged under UCC by showing a hypothetical rather than an actual loss due to holder's treatment of the collateral), rev'd in factual rather than legal terms, 74 N.J. 45, 376 A.2d 931 (1977)). Accordingly, D.S. America's obligations under the Agreement were not released by ITT's handling of the security filings.
Extension and Modification of the Principal Contract
D.S. America's final string to its bow is that its obligations under the Agreement were released when ITT twice modified its agreement with ColorComp without D.S. America's approval. D.S. America has cited a wealth of precedent holding modification of the principal contract, such as an extension of time for payment, will serve to discharge a guarantor (see, e.g., Lee v. Pioneer State Bank, 97 Ill.App.3d 97, 98, 53 Ill. Dec. 26, 27-28, 423 N.E.2d 218, 219-20 (3d Dist.1981)).
ITT Mem. II-4 retorts with the language of estoppel: D.S. America cannot use this traditional guarantor's defense because it had refused to honor its recourse commitment before each ITT renegotiation of the note.[18] That response carries the day for *1341 ITT.[19]
Equitable estoppel is a familiar and broadly applicable concept (18 I.L.P. Estoppel § 22, at 79 (1956)):
Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in chancery, from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse....
Illinois cases have had surprisingly little occasion to apply that concept to a guarantor after repudiation of a guaranty commitment. Neither the sole case cited by ITT (South Side Trust & Savings Bank of Peoria v. Peoria Harbor Marina, Inc., 101 Ill.App.3d 196, 56 Ill. Dec. 712, 427 N.E.2d 1258 (3d Dist.1981)) nor the single case uncovered by this Court (Blackhawk Hotel Associates v. Kaufman, 85 Ill. 2d 59, 51 Ill. Dec. 658, 421 N.E.2d 166 (1981)) is directly on point, though of the two Blackhawk Hotel is substantially the more similar to this case. But in any event, the principles that generally inform courts in invoking estoppel certainly operate here.
In each instance ITT extended the note after D.S. America had refused to honor the Agreement. At that point ITT faced the alternative of suing D.S. America immediately or attempting to make the best available arrangement to maximize the prospects of ITT's being paid on the note. Litigation is expensive, chancy and time consuming (this lawsuit is living proof of that). It would be grossly unfair to second-guess ITT's business decision to try to salvage ColorComp's repayment of the note rather than to choose to do battle with D.S. America immediately.[20] And when those good faith salvage efforts ultimately failed, ITT cannot now be prevented from seeking the protection for which it bargained in the Agreement. Like the guarantor in Blackhawk Hotel, 85 Ill.2d at 67, 51 Ill.Dec. at 662, 421 N.E.2d at 170, D.S. America having refused to perform under the Agreement cannot take shelter in ITT's post-refusal actions.
One last element of the estoppel question bears consideration before a final conclusion is reached in this area. When ITT first made a demand on D.S. America in August 1985, the latter refused not only because of the form the ITT-ColorComp transaction had taken but (as already discussed) because of ITT's failure to have protected the Dot Scanner through adequate security filings (Kopczenski Dep. Ex. 21). That last objection was valid. But that does not allow D.S. America to escape the operation of estoppel:
1. Because D.S. America's valid (but readily curable) objection to the security filings was coupled with its fundamental challenge to the very structure of the ITT-ColorComp transaction, ITT could not be faulted for its not having cleaned up the security filings, then returning to D.S. America to make another foredoomed demand.
2. As held earlier in this opinion, ITT's original imprecise security filings *1342 did not cause any injury to D.S. America. ITT was able to amend the filings before any third party acquired a superior interest in the equipment. D.S. America would not have been justified in repudiating the Agreement solely because of the potential yet unrealized defects in perfecting the security interest.
In summary, D.S. America was not relieved of its obligations under the Agreement by ITT's two modifications of the underlying contract with ColorComp. Except for the previously-identified factual issue as to whether D.S. America received what it bargained for when it entered into the Agreement, ITT would therefore be entitled to a judgment as to D.S. America's liability under the Agreement.
Damages
Rule 56(d) provides for the maximum benefit to be derived from an abortive summary judgment motion (emphasis added):
(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court ... shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
On the damage front, ITT has submitted a sworn exhibit detailing the amount owed to it on the ColorComp note at the end of November 1986 as $241,065.80, with interest accruing since that date at $89.67 per day (ITT Ex. 9, Response to Int. 7 in D.S. America's First Set of Interrogatories (Ex. B)). DSA Mem. II-14 challenges ITT's calculation of the amount now owing and asserts that as a material issue of fact.
D.S. America's submissions are insufficient to create a material issue over damages. DSA Mem. II-14 argues ITT has failed (1) to show whether it has received any payment from other sources and (2) to explain how it calculated late charges or derived the applicable interest rate on the transaction. But ITT's proof consists of the affidavit of its Division Credit Manager Joseph Bronk, obviously reflecting the information drawn from ITT's records and the relevant mathematical calculations called for by the note. D.S. America had every opportunity during the discovery period to uncover evidence (if there were any) to contradict ITT's damage calculations (ITT's interrogatory response was delivered to D.S. America's counsel many months ago February 16 of this year). Yet D.S. America has offered no evidence by way of affidavit, deposition response or any other permissible route to question (let alone undercut) ITT's submission.
That brings the teaching of Anderson, 106 S.Ct. at 2514 squarely into play:
Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.... This is true even where the evidence is likely to be within the possession of the [movant], as long as the [nonmovant] has had a full opportunity to conduct discovery.
And that alone requires rejection of D.S. America's challenge.
But there is more. D.S. America failed to note the calculation of damages as one of the seven genuine disputed issues listed in its statement filed (together with its Mem. II) under this District Court's General Rule 12(f). That being so, General Rule 12(f) calls for ITT's General Rule 12(e) statement to be "deemed to be admitted" by D.S. America (see Keene Corp. v. International Fidelity Insurance Co., 561 F. Supp. 656, 663-65 (N.D.Ill.1982) (an identical holding as to the noncontroverted issue of damages, under the equivalent local rule of the Southern District of New York that served as the model for this District Court's later-adopted General Rules 12(e) *1343 and 12(f)), aff'd, 736 F.2d 388 (7th Cir. 1984)).
Consequently ITT is entitled to summary judgment on the issue of damages (if it ultimately prevails as to liability). On the damages issue, there is no genuine issue of material fact. If D.S. America is held liable on the merits, the amount of that liability will be $241,065.80 in principal amount plus interest from and after December 1, 1986 at the rate of $89.67 per day.
Conclusion
D.S. America loses on every aspect of its summary judgment motion. As for ITT, it prevails on most issues (including its claimed damage amount), but summary judgment as to liability is precluded by a single genuine issue of material fact. Its counsel is directed to prepare and submit to D.S. America's counsel on or before December 15, 1987 a proposed Rule 56(d) order stating all "facts that [from this opinion] appear without substantial controversy," with a view toward the presentation to this Court on or before December 29, 1987 of a jointly prepared order or, in the absence of agreement, opposing forms of a proposed order stating all such facts.[21] This action is set for a status hearing January 5, 1988 at 9 a.m.
NOTES
[1] As it frequently does on such cross-motions, this Court ordered simultaneous cross-filings by the parties, followed by simultaneous cross-responses. With leave of court, ITT then filed a third memorandum to address issues first raised in D.S. America's responsive memorandum. This opinion will cite the various memoranda by referring first to the litigant (in this instance as "ITT" or "DSA"), then to the memorandum involved ("I," "II" or "III"), then to the pagefor example, "ITT Mem. II-7." Exhibits (other than those annexed to a particular deposition) will similarly be designated "ITT Ex." or "DSA Ex.."
[2] As this Court has observed on other occasions, the need to emulate Janus on Rule 56 cross-motions (as discussed below under "Applicable Standards") creates the potential that neither side will get summary judgment. One way for the trial judge to avoid that waste of lawyers' time, clients' money and judicial effort is to try to get a stipulation up front that any factual issues that do emerge from the opposing presentations may be resolved by the judge. Another and riskier possibility is that a creative appellate court will infer such an agreement from the mere presentation of cross-motions (see May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1115-16 (7th Cir.1986))a doubtful proposition in most cases. As the later discussion in this opinion reflects, this is one of the cases that falls between the cracks because of the double inference-drawing requirement referred to in the next paragraph in the text. In any event, this opinion's "Facts" recital is drawn from both parties' submissions, while the disputed item that forecloses summary judgment is referred to later in the body of the opinion.
[3] This Court's independent analysis has confirmed the reasonable likelihood that Illinois choice-of-law rules would lead to Illinois substantive law. Illinois now employs the "most significant contacts" approach for contract as well as tort actions (Palmer v. Beverly Enterprises, 823 F.2d 1105, 1107 (7th Cir.1987)). Several of the relevant factorsmainly D.S. America's principal place of business and the place of contractingpoint to Illinois (see Champagnie v. W.E. O'Neil Construction Co., 77 Ill.App.3d 136, 144-45, 32 Ill. Dec. 609, 615, 395 N.E.2d 990, 996 (1st Dist.1979)).
[4] [Footnote by this Court] "Above described" was a reference to a schedule to be attached to the Agreement. Satoh Dep. 46-47 reflected his belief the schedule was not so attached ("I don't think so"). Perhaps with that omission in mind, D.S. America's First Amended Answer raised the defense that the Agreement is "incomplete as to a material term ... [thereby failing] to state a claim upon which relief can be granted." But D.S. America has not raised that issue in the pending motions (which both parties intended to be fully dispositive of this lawsuit), and it is therefore waived. In any event, it would not appear to have been material to resolution of the case.
[5] That assertion poses some obvious credibility problems. Satoh was experienced in financing transactions, and he was well aware both of the technical differences and of any claimed substantive distinctions between equipment financing leases and loans secured by the purchased equipment. In terms of the techniques employed, certainly the most obvious difference is that in the lease arrangement the finance company buys the equipment, then leases it to the user, while in the secured loan arrangement the user buys the equipment, then grants a security interest to the finance company. In this instance:
1. D.S. America's Purchase Agreement form (dated November 16, 1984before the ITT deal was negotiated) showed ColorComp as "Buyer/Debtor" and D.S. America as "Seller/Secured Party" (Satoh signed for it in that latter capacity).
2. Satoh's November 30, 1984 letter forwarding the signed Recourse/Repurchase Agreement to ITT after the latter's deal with ColorComp had been struck spoke of "The Color Company purchase of DS equipment" (emphasis added).
3. D.S. America's December 21, 1984 invoice for the equipment read "Sold to The Color Company"not to ITT.
From the documents furnished this Court, then, it appears DSA Mem. II-7 paints a false picture when it says (emphasis added):
Plaintiff [ITT] conveyed the equipment to the Color Company and accepted a promissory note and security agreement.
All the documents referred to in this footnote, consistent with a secured loan and not with a finance lease, cast serious doubt on Satoh's current version of what he knew at the outset. D.S. America had to know ITT never took title to the equipment, as it would have had to do to become lessor under a finance lease. In that respect, the parties have not seen fit to provide this Court with all the corresponding documentation through which ITT did a straight equipment lease deal with another customer of D.S. America (Colorgraphics, Inc.) earlier in 1984. In any event, because questioning Satoh's affidavit would create a clear factual issue barring summary judgment, this opinion's analysis will be based on an arguendo acceptance of what Satoh says.
[6] D.S. America disputes the exact timing of that notification, specifically whether ITT made demand for recourse before or after D.S. America was notified ColorComp was "on the verge of bankruptcy" (DSA Mem. II-2). But D.S. America certainly received notice of the default and demand for recourse at least by the time of the August 21, 1985 letter from ITT's Division Portfolio Manager Kopczenski to D.S. America's National Credit Manager Earl Mortimer ("Mortimer") (Kopczenski Dep. Ex. 11). D.S. America did not formally respond to that demand until October 2, 1985. It is really immaterial whether ITT's demand for recourse preceded or followed notice of ColorComp's financial difficulties (which came via telephone by an attorney for ColorComp on August 19).
[7] As n. 5 has explained, D.S. America has clearly said it thought ITT and ColorComp would be executing a lease, while ITT disputes whether D.S. America believed before executing the Agreement that the transaction was to be structured as a lease. But for purposes of these motions ITT has said it is willing to accept D.S. America's version of the facts (ITT Mem. I-5 n. 2). For the reason stated in n. 5, this Court has done the same for the presentbut see the caveat as to D.S. America's Rule 11 exposure expressed later in the opinion.
[8] About that time Kopczenski placed the notation "Satisfied and Released" on the original counterpart of the Agreement, in the belief D.S. America was about to forward the necessary funds (Kopczenski Dep. 85-88). When the controversy over the Agreement later erupted, Kopczenski rued his earlier optimism and added "marked paid in error A.J. Kopczenski 11/18/85" to the Agreement.
[9] As will be seen, part of the discussion of the impairment-of-collateral issue is an appropriate prerequisite to dealing with the extensions of the note.
[10] This is the archetype of the needless and wasteful lawsuit. There was certainly no need for the documentation to have taken the form it did: As this opinion reflects, ITT had available (and in fact had used in other deals) finance lease forms, and there is not the slightest substantive difference in the rights and obligations under the two different forms of financing arrangements ITT gained no edge by using the secured loan format. Had the lease arrangement been followed instead, this dispute would never have erupted. Though speculation is idle, it seems likely that some ITT functionary (perhaps even a lawyer, unfortunately) unthinkingly pulled the wrong set of forms for use. But as the ensuing discussion reflects, that "crime" does not necessarily call for the death penalty.
[11] Both litigants' memoranda have cited primarily to cases involving guaranties. And D.S. America's undertaking certainly fits the conventional definition as expressed, for example, in Rock Island Bank and Trust Co. v. Stauduhar, 59 Ill.App.3d 892, 900-01, 17 Ill. Dec. 99, 105, 375 N.E.2d 1383, 1389 (3d Dist.1978):
A guaranty contract is defined as an enforceable undertaking or promise on the part of one person which is collateral to a primary or principal obligation on the part of another, and which binds the obligor to performance in the event of nonperformance by such other, the latter being bound to perform primarily.
[12] It is true that Claude Southern also recognized it was interpreting a guaranty "drawn by businessmen without the aid of legal counsel" (id.) and the court ought to determine the intent of the parties rather than be governed by a "strict technical nicety" (id.). This Court may perhaps be dealing with more sophisticated business entities (though the departure between the one-page Agreement and the contemporaneously-prepared "implementing" documents does not bespeak much sophistication on the part of ITT's human beings, as contrasted with ITT's corporate entity, see n. 10). But what controls for present purposes are (1) the fact that Claude Southern's language quoted in the text is not at all limited to the businessmen-drafted document and (2) Claude Southern's unrestricted adoption, in a precisely parallel set of relationships, of an equitable rather than a strictly literal definition of the parties' rights and duties.
[13] In light of Claude Southern as a direct precedent, this opinion need not pause to distinguish (or apply) such more generalized propositions as the usual strict reading of guarantor undertakings (see, e.g., Farmers State Bank v. Doering, 80 Ill.App.3d 959, 961, 36 Ill. Dec. 285, 287, 400 N.E.2d 705, 707 (4th Dist.1980); but cf. Newman-Green, Inc. v. Alfonzo-Larrain R., 832 F.2d 417, 420 & n. 2 (7th Cir.1987)) or as the contra proferentem approach to contract construction a "rule of last resort" (Lippo v. Mobil Oil Corp., 776 F.2d 706, 714 n. 15 (7th Cir.1985)). Indeed the last-quoted language from Claude Southern teaches such rules of construction must take a back seat to the search for intent.
[14] Of course this Court is well aware that the relevant search is one for the parties' intention, and both the Claude Southern discussion and what follows in the text of this opinion reflect an effort to get at intent in the objective sense. This Court is equally well aware that Satoh's affidavit purports to state his subjective intent: his claimed unwillingness to have signed the Agreement had he known the ITT-ColorComp transaction was not in lease form. That statement's effect on the current ruling will be dealt with in due course.
[15] Although the Security Agreement says it is to be "interpreted according to the laws of the state of Missouri," ITT's principal place of business, a choice-of-law question might perhaps be posed by the fact the financing statements necessarily had to be filed in Texas (ColorComp's home state). But because both Missouri and Texas (and Illinois, for that matter) have enacted the UCC, the choice of law makes no difference (see 9 Hawkland, Lord & Lewis, UCC Series § 9-504:02 (Art. 9)).
[16] ITT may ultimately be able to prove that Satoh (and hence D.S. America) had no objective good faith predicate for making the statement that has blocked summary judgment a real possibility in light of the objective identity of the finance lease and the secured installment note. ITT may even be able to prove Satoh (and hence D.S. America) had no objective good faith predicate for denying knowledge from the beginning that there was no lease arrangement also a real possibility (see n. 5). However, ITT would not necessarily be without a remedy. Rule 11 might well come into play to shift ITT's resulting expense (perhaps the cost of a trial) to D.S. America (see Lisak v. Mercantile Bancorp, Inc., 834 F.2d 668, 672 (7th Cir.1987) for a strong directive from our Court of Appeals to district judges to give a "close look" to the potential of Rule 11 sanctions). Given those prospects, it might be appropriate at the time of trial to consider special interrogatories for the jury on the subject of D.S. America's intention and D.S. America's knowledge. That, however, is for the future.
[17] As n. 15 suggests, there is no need to decide whether the pertinent state law for the adequacy of the security filings is that of Illinois, Missouri or Texas. All three states impose similar requirements and tests for the adequacy of collateral description (see generally 8 Hawkland, Lord & Lewis, UCC Series §§ 9-110 ff. (Art. 9)).
[18] ITT Mem. II-5 also asserts the two extension agreements with ColorComp were not the type of material alterations of the principal contract that would normally discharge D.S. America's collateral obligation. ITT correctly points out D.S. America's recourse obligation remained limited to the original three-year period, and the extensions arguably decreased the chances of ColorComp's default during that period. Nonetheless, modification of the principal contract without a guarantor's consent can still serve to discharge the guarantor, even if the modification was arguably in its best interests (see Lawndale Steel, 98 Ill.App.3d at 174, 53 Ill.Dec. at 294, 423 N.E.2d at 963). In that respect, there is another side to the "best interests" coin: D.S. America could also arguably have been prejudiced by losing the opportunity to take repossession of the equipment at an earlier date if and when ColorComp again defaulted (cf. McHenry State Bank, 117 Ill.App.3d at 633, 73 Ill.Dec. at 488, 454 N.E. at 348 (modification of the principal contract discharges a guarantor who lost "the opportunity to protect himself")). In any event, ITT denied D.S. America any participation in the decision to extend the note.
[19] ITT Mem. II-4 also justifies its conduct in terms of its asserted duty to mitigate damages. This opinion need not resolve whether any such duty exists in the present guarantor context:
1. If ITT did owe (and breach) a duty to notify D.S. America before renegotiating ColorComp's obligations, D.S. America's guaranty would be discharged irrespective of the reasonableness of the renegotiation.
2. If estoppel does bar D.S. America from asserting such a discharge, it is enough for the renegotiation to have reflected ITT's bona fide judgment as to what was in its economic best interests as the creditor and such bona fides are unquestionable.
[20] Though D.S. America has really foreclosed itself from challenging the particulars of the arms' length renegotiations, a brief look confirms the reasonableness of the $26,507.00 extension fee as part of the November 1985 extension. Payments from ColorComp had stopped about July 1985 (Kopczenski Dep. Ex. 11). Under the extension agreement, principal payments would not recommence until April 1986 (Kopczenski Dep. Ex. 14). It may be noted ITT did not require any extension fee as part of the second extension granted ColorComp (Kopczenski Dep. Ex. 16).
[21] This order does not of course contemplate D.S. America's surrender. What is rather anticipated is D.S. America's providing its suggested input to the proper form of order on the basis of the rulings reflected in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902692/ | In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Lockman, J.), entered January 7, 1987, which granted the defendants’ motion for summary judgment and dismissed the complaint, and (2) from so much of an order of the same court, dated March 16, 1987, as, upon reargument, adhered to its original determination.
Ordered that the appeal from the order entered January 7, 1987 is dismissed, without costs or disbursements, as that order was superseded by the order dated March 16, 1987, made upon reargument; and it is further,
Ordered that the order dated March 16, 1987 is modified by deleting the provision thereof which granted that branch of the defendants’ motion which was to dismiss the complaint insofar as it is asserted against the defendant Nelson Moret and substituting therefor a provision denying that branch of the motion; as so modified, the order dated March 16, 1987 is affirmed insofar as appealed from, without costs or disbursements, and the order entered January 7, 1987 is modified accordingly.
*803On August 24, 1985, at the request of his neighbor, the defendant Nelson Moret, the plaintiff Peter Scaturro agreed to help him move an unframed mirror from Moret’s living room to his garage. The mirror was approximately 6 feet by 4 feet, one-quarter inch thick and weighed approximately 75 pounds. The men successfully carried the mirror out the front door while the defendant Joan Moret held the door open. When the plaintiff was in the area of the step connecting the outside landing and the front walk, a large triangular section broke off the corner of the mirror and cut Mr. Scaturro’s left wrist. Mr. Scaturro suffered nerve damage requiring surgery and some permanent loss of strength and dexterity in his left hand.
The defendants moved for summary judgment and appended all the transcripts of the examinations before trial to their motion. The plaintiffs opposed the motion offering various theories of liability. The court held that, as a matter of law, the defendants did not breach the duty of due care owed to the plaintiffs and granted summary judgment in favor of the defendants.
With respect to Mrs. Moret, the court’s ruling was proper. There was no evidence that Mrs. Moret in any manner contributed to the injuries suffered by Mr. Scaturro. The plaintiffs have not alleged that she solicited Mr. Scaturro to carry the mirror, or that she mishandled the mirror or caused anyone else to mishandle the mirror. Accordingly, the court properly concluded that there was no triable issue of fact as to whether Mrs. Moret failed to act in a reasonably prudent manner (see, CPLR 3212 [b]; Lomnitz v Town of Woodbury, 81 AD2d 828, 829; Hartwig v Three F. Conservation Soc., 49 AD2d 678).
However, with respect to Mr. Moret, summary judgment was not warranted. Although the plaintiffs failed to direct the court’s attention to the specific portions of the pretrial testimony now relied upon, there are three statements in that testimony which demonstrate that there is a triable issue as to whether Mr. Moret caused or contributed to Mr. Scaturro’s injuries by jarring or dropping the mirror or allowing it to slip from his hands. First, the plaintiff Marisela Scaturro testified that while waiting in the hospital immediately after the accident, in response to her inquiry as to what had happened, Mr. Moret stated that the mirror might have slipped "[o]ut of his [Moret’s] hands”. In addition, the plaintiff Peter Scaturro testified that just before the glass broke, either Mr. or Mrs. Moret said "oops” or "ooh”. Also, Joan Moret stated that just *804before the mirror broke, she heard an "impact” from which it can be inferred that the mirror struck something.
Admittedly, this testimony was contradicted by other pretrial testimony indicating that the mirror was not dropped. It is also true that each of the above-quoted statements are subject to varying interpretations, some of which would support a finding of no liability. However, questions of credibility should be left to the trier of fact (see, Frame v Mack Markowitz, Inc., 125 AD2d 442, 443; Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261). Furthermore, in determining a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, and the motion "should not be granted where there is any doubt as to the existence of triable issues” (Dal Constr. Corp. v City of New York, 108 AD2d 892, 894). Thus, the defendants’ suggested innocent explanations of the evidence in question are actually arguments directed to the weight of the evidence which should be decided by the trier of fact. Moreover, there is a triable issue of fact as to whether the defendant Nelson Moret breached his duty of reasonable care owed by a homeowner to a neighbor assisting him in the movement of this type of mirror (see, Morell v Peekskill Ranch, 64 NY2d 859, revg 104 AD2d 492, 493-495, on dissent of Rubin, J.). Accordingly, summary judgment should not have been granted to the defendant Nelson Moret. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902693/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Renee A. White, J.), rendered on or about January 3, 2012, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902694/ | Appeal by the defendants from an order of the Supreme Court, Suffolk County, entered March 9, 1987.
Ordered that the order is affirmed, with costs, for reasons stated by Justice Underwood in the Supreme Court. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902695/ | Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about June 17, 2011, which, to the extent appealed from as limited by the briefs, after a fact-finding determination of aggravating circumstances, granted petitioner mother a final five-year order of protection, and modified a prior order of custody and visitation to award her sole legal custody of the subject child and visitation on the third weekend of every month, unanimously affirmed, without costs.
Contrary to appellant father’s contention, the Family Court properly determined, in the combined family offense and custody modification order appealed, that a further evidentiary hearing was not necessary because the Court possessed sufficient information to render an informed decision based on its extensive history with the parties and because the father made no further offer of proof that would have affected the outcome (see Matter of James M. v Kevin M., 99 AD3d 911, 913 [2d Dept *4252012]; Rodman v Friedman, 33 AD3d 400, 401 [1st Dept 2006], lv dismissed 8 NY3d 895 [2007]).
Moreover, where domestic violence is alleged, “the court must consider the effect of such domestic violence upon the best interests of the child” (Domestic Relations Law § 240 [1] [a]). Upon weighing the appropriate factors, the Family Court correctly determined that the best interests of the child here would be served by granting the mother custody {see Matter of Gant v Higgins, 203 AD2d 23, 24 [1st Dept 1994]; Matter of Rosiana C. v Pierre S., 191 AD2d 432 [2d Dept 1993]). Although appellant denied during the fact-finding hearing on the family offense petition that he had committed acts of domestic violence and/or verbal abuse that were directed at the mother in front of the child, the Family Court resolved the conflicting testimony in favor of the mother, and on this record, there is no basis to disturb the court’s credibility determinations (see Matter of Lisa S. v William V., 95 AD3d 666 [1st Dept 2012]).
We have considered appellant’s remaining contentions and find them unavailing. Concur—Tom, J.E, Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6712952/ | Motion by Attorney General to dismiss the appeal for lack of substantial constitutional question allowed 3 April 1996. Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 3 April 1996. | 01-03-2023 | 07-20-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902697/ | In an action, inter alia, for an accounting, the defendants appeal from an order of the Supreme Court, Kings County (Morton, J.), dated October 10, 1986, which granted the plaintiff’s motion to vacate his default in answering counterclaims and denied their cross motion for summary judgment.
Ordered that the order is affirmed, with costs.
The plaintiff’s motion to vacate his default in answering defendants’ counterclaims was properly granted. The plaintiff showed a meritorious defense, excusable neglect and an intent to defend the allegations against him. Moreover, the defendants failed to demonstrate that they were prejudiced by the delay which was of relatively short duration. Given these factors, the court was justified in exercising its discretion to allow resolution of the dispute on the merits (see, Stolpiec v Wiener, 100 AD2d 931).
The motion for summary judgment was properly denied. The Statute of Frauds (General Obligations Law § 5-701) does *806not bar the plaintiffs action on the oral agreement. The plaintiff alleges that the parties orally agreed to form a corporation and divide its stock equally. The agreement contemplates organizing a corporation and issuing and delivering stock to the parties. Therefore, it could be performed within one year.
In addition, summary. judgment was properly denied because the conflicting affidavits raised numerous issues of fact, including the specific terms of the agreement and whether the plaintiff performed his obligations thereunder. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902698/ | In an action to recover under an insurance policy for the loss of his pleasure boat, the plaintiff appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated October 16, 1986, which denied his motion for summary judgment in his favor and against the respondent.
Ordered that the order is affirmed, with costs.
Summary judgment is a drastic remedy which only should be granted when there is no doubt as to the existence of an arguable triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361). At bar, the opposing papers of the respondent Fireman’s Fund Insurance Companies were sufficient to raise a question as to whether the plaintiffs boat was being used for a commercial purpose and therefore that its loss was not covered by the insurance policy in question at the time it was destroyed by fire. Accordingly, summary judgment was properly denied. Further, contrary to the plaintiffs contention, we do not find that the respondent, which initially disclaimed coverage on the basis of a breach of warranty, waived the right to assert the affirmative defense of material misrepresentation in its answer (see, Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717). Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902699/ | Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about June 17, 2011, which, to the extent appealed from as limited by the briefs, after a fact-finding determination of aggravating circumstances, granted petitioner mother a final five-year order of protection, and modified a prior order of custody and visitation to award her sole legal custody of the subject child and visitation on the third weekend of every month, unanimously affirmed, without costs.
Contrary to appellant father’s contention, the Family Court properly determined, in the combined family offense and custody modification order appealed, that a further evidentiary hearing was not necessary because the Court possessed sufficient information to render an informed decision based on its extensive history with the parties and because the father made no further offer of proof that would have affected the outcome (see Matter of James M. v Kevin M., 99 AD3d 911, 913 [2d Dept *4252012]; Rodman v Friedman, 33 AD3d 400, 401 [1st Dept 2006], lv dismissed 8 NY3d 895 [2007]).
Moreover, where domestic violence is alleged, “the court must consider the effect of such domestic violence upon the best interests of the child” (Domestic Relations Law § 240 [1] [a]). Upon weighing the appropriate factors, the Family Court correctly determined that the best interests of the child here would be served by granting the mother custody {see Matter of Gant v Higgins, 203 AD2d 23, 24 [1st Dept 1994]; Matter of Rosiana C. v Pierre S., 191 AD2d 432 [2d Dept 1993]). Although appellant denied during the fact-finding hearing on the family offense petition that he had committed acts of domestic violence and/or verbal abuse that were directed at the mother in front of the child, the Family Court resolved the conflicting testimony in favor of the mother, and on this record, there is no basis to disturb the court’s credibility determinations (see Matter of Lisa S. v William V., 95 AD3d 666 [1st Dept 2012]).
We have considered appellant’s remaining contentions and find them unavailing. Concur—Tom, J.E, Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902700/ | In an action to recover damages for personal injuries, (1) the defendant and third-party plaintiff Northgate Homes, Northgate Properties, Inc., also known as Northgate Realty Corp. (hereinafter *807Northgate), appeals from a judgment of the Supreme Court, Richmond County (Kuffner, J., at trial on the issue of liability; Radin, J., at trial on the issue of damages), dated April 30, 1985, which, upon jury verdicts on the issues of liability and damages, is in favor of the plaintiff Robert Vaniglia and against it in the principal sum of $1,500,000; and (2) the third-party defendant United Associates Construction & Excavating Corp. appeals from a judgment of the same court (Kuffner, J.), dated October 16, 1985, which is in favor of Northgate and against it. The third-party defendant’s notice of appeal from an undated judgment is deemed a premature notice of appeal from the judgment dated October 16, 1985.
Ordered that the judgment dated April 30, 1985 is reversed, on the facts and as an exercise of discretion, without costs or disbursements, and a new trial is granted on the issue of damages only, unless within 20 days after service upon the plaintiff of a copy of this decision and order, together with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Richmond County, a written stipulation consenting to reduce the verdict as to damages to the principal sum of $1,000,000, and to the entry of an amended judgment accordingly; in the event the plaintiff so stipulates, then the judgment dated April 30, 1985, as so reduced and amended, is affirmed, without costs or disbursements; the findings of fact as to liability are affirmed; and it is further,
Ordered that the judgment dated October 16, 1985 is affirmed, without costs or disbursement.
On March 30, 1977, the plaintiff, Robert Vaniglia, sustained serious injuries at a construction site in Richmond County when an equipment operator, who was in the process of excavating a ditch, caused his backhoe to become entangled with an underground electrical conduit causing a horizontal riser connected thereto to become dislodged, striking the plaintiff. Northgate was the owner of the site where the accident occurred and was also the general contractor of a project involving the erection of new homes at that site. The plaintiff was employed as an electrician by one of the subcontractors in connection with the project. At a nearby location, the third-party defendant United Associates Construction & Excavating Corp. (hereinafter United), was performing excavation work for the Brooklyn Union Gas Company, which was installing gas mains in the area. On the date of the accident, workers from Northgate project went to the Brooklyn Union Gas Company jobsite and asked United’s foreman to lend *808them a backhoe and an operator to assist them with some excavation at Northgate’s site. Nicholas Spagnole, United’s equipment operator, responded to this request and consequently the plaintiff was injured. As a result of the accident the plaintiff was hospitalized for injuries sustained to his neck, head and back. Following numerous hospitalizations for the examination and treatment of his injuries, the plaintiff returned to work on a limited, light-duty basis in October of 1977 but was forced to cease his employment on October 28, 1980, due to the injuries he sustained in the accident. In the meantime, however, he had commenced the instant action seeking to recover damages for personal injuries. After a trial on the issue of liability, the jury found that Northgate had violated Labor Law §§ 200 and 241 (6) and that its negligence was a proximate cause of the accident. Additionally, the jury found that the backhoe operator, Spagnole, was acting within the scope of his authority and in furtherance of the business of United, and therefore, Northgate had sustained its burden of proof that United was liable in part for the plaintiff’s injuries. The jury found 75% of the fault attributable to Northgate and 25% attributable to United. Thereafter a trial was held, with the same jury, on the issue of damages. The jury found that the plaintiff had sustained damages as a result of the March 30, 1977 accident and awarded him the principal sum of $1,500,000.
Initially, we hold that the findings of the jury with regard to the apportionment of fault should not be disturbed. The verdict on that issue was supported by legally sufficient evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 499). Furthermore, a jury verdict cannot be set aside as against the weight of the evidence merely because a different conclusion could be reached or because a jury’s reasoning is difficult to comprehend. Rather, the court must determine that the jury’s findings could not be reached by any fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129). Such a situation does not exist in the case at bar.
We further conclude that the trial court did not err in denying the request for a missing witness charge as to the numerous physicians who either treated or examined the plaintiff but did not testify at the trial. The record is devoid of any indication that the doctors who did not testify would have provided testimony which was not merely cumulative (see, Chandler v Flynn, 111 AD2d 300, 301, appeal dismissed 67 NY2d 647; Oswald v Heaney, 70 AD2d 653, 654).
However, we find the verdict was excessive to the extent *809indicated. We have reviewed the remaining contentions of the parties and find them to be without merit. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2022391/ | 7 N.Y.3d 51 (2006)
850 N.E.2d 637
817 N.Y.S.2d 590
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
TERENCE WELLS, Appellant.
Court of Appeals of New York.
Argued March 29, 2006.
Decided May 11, 2006.
*52 Office of the Appellate Defender, New York City (Brian W. Stull, Richard M. Greenberg and Sara Gurwitch of counsel), for appellant.
*53 Robert M. Morgenthau, District Attorney, New York City (Sandra E. Cavazos and Sylvia Wertheimer of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, READ and R.S. SMITH concur with Judge GRAFFEO; Judge G.B. SMITH concurs in a separate opinion.
*54 OPINION OF THE COURT
GRAFFEO, J.
This appeal focuses on whether a single charge of attempted intentional murder is duplicitous when the evidence adduced at trial demonstrates that the defendant fired a gun in the direction of more than one individual but does not definitively establish the identity of the intended victim. Based on the reasoning expressed in People v Fernandez (88 NY2d 777 [1996]), we conclude that such a charge is not defective and, thus, may be submitted to the jury.
I
On October 13, 1999, defendant Terence Wells and his accomplice Lerone Grant planned to rob a Manhattan bakery. Just before the store closed, they entered wearing wigs and hats, and each was armed with a handgun. In the course of their attempt to steal cash kept in the store's office, they killed two individuals by shooting them multiple times and seriously injured two others.
At the time of the shootings, several undercover police officers were preparing to conduct a narcotics surveillance operation in the vicinity of the bakery. Two detectives, Christopher Weston and Eddie Molina, heard what sounded like firecrackers and saw a number of individuals fleeing the bakery. Upon seeing defendant and Grant run out of the store with what appeared to be a weapon, Detective Weston announced that he was a police officer and ordered the men to stop. Defendant responded by firing his gun twice in the direction of the two detectives as he ran up the street.
A foot chase by the police ensued. Defendant dropped several articles of clothing to the ground and a police officer retrieved one of the itemsa wigdiscovering a handgun concealed inside. Eventually, defendant was apprehended by another police officer who answered a call for assistance. Defendant's accomplice was also arrested after he shot at police officers and abandoned his weapon.
Defendant, along with Grant and several other individuals involved in the planning or execution of these crimes, was *55 charged with multiple counts of murder in the first and second degrees, attempted murder in the first degree of a police officer and related offenses.[1] Following a jury trial, defendant was convicted of, among other crimes, murder in the first and second degrees and one count of attempted murder in the second degree as a lesser included offense of attempted murder of a police officer. Defendant was subsequently sentenced to an aggregate prison term of 50 years to life. The Appellate Division affirmed, as do we.
II
At the close of proof at trial, defendant moved to dismiss the count of the indictment that charged him with attempted first-degree murder of a police officer, arguing that the count was duplicitous because the evidence failed to establish whether defendant intended to kill Detective Weston or Detective Molina. The trial court reserved decision and charged the jury on the elements of attempted first-degree murder as well as the lesser-included offense of attempted murder in the second degree. With regard to the greater offense, the court instructed that this count required the jury to find that defendant intended to kill a police officer who was engaged in the course of performing his official acts. As for the lesser offense, the court initially informed the jury that it had to find that defendant's intended victim was Detective Molina, but the court later amended its charge and told the jury that the People had to prove that defendant intended to cause the death of "another person." Defendant objected to these instructions, reiterating his earlier argument that they allowed the jury to convict without unanimously identifying the individual that defendant sought to kill and, therefore, the first-degree murder count was duplicitous. The court rejected this contention on the authority of People v Fernandez (88 NY2d 777 [1996]), thereby effectively denying defendant's motion to dismiss on duplicity grounds.
During deliberations, the jury sent a note seeking clarification of whether the count of attempted murder in the first degree applied to "Detective Molina alone or to detectives Molina and/or Weston." The court responded that this issue was a question of fact for the jury to resolve. Defense counsel again voiced his duplicity objection, but was overruled. The jury *56 ultimately acquitted defendant of attempted first-degree murder but convicted him of attempted murder in the second degree.
The primary issue on appeal is whether the count of the indictment charging defendant with attempted murder in the first degree for shooting at the two detectives was duplicitous since the evidence at trial failed to specify which police officer defendant intended to kill. Defendant asserts that the attempted murder count was defective in that it was used to prosecute two distinct crimes and that the trial court committed reversible error because the jury was not instructed to unanimously determine whether the intended victim was Detective Molina or Detective Weston.
A count of an indictment is duplicitous and, hence, defective if it charges more than one offense (see CPL 200.30 [1]; People v Keindl, 68 NY2d 410, 417-418 [1986]). If the commission of a single act constitutes a crime, "that act must be the only offense alleged in the count" and "acts which separately and individually make out distinct crimes must be charged in separate and distinct counts" (People v Keindl, 68 NY2d at 417).[2] As relevant to this case, the offense of first-degree murder is committed when, with the intent to kill a police officer engaged in the performance of official duties, the defendant causes the death of that police officer or a third person and "the defendant knew or reasonably should have known that the intended victim was a police officer" (Penal Law § 125.27 [1] [a] [i]). Second-degree murder, a lesser included offense, similarly requires an intent to kill, but that intent may be directed at "another person" who need not be a police officer (Penal Law § 125.25 [1]). An attempt to commit these crimes occurs if a defendant, possessing the requisite murderous intent, acts in a manner that "tends to effect the commission of such crime[s]" (Penal Law § 110.00).
Although the People were required to demonstrate that defendant intended to kill, we conclude that the People did not *57 have to establish which of the two police officers was the target of defendant's conduct under the facts presented in this case. As we explained in People v Fernandez (88 NY2d 777 [1996]), "actual death is not an element" of attempted murder and, therefore, the "identity of the person whose death" was intended is not relevant in determining whether the crime has been committed (id. at 783). The defendant in Fernandez was charged with attempted murder for firing a gun at a group of individuals and shooting a person named Correa. We ruled that it was proper to instruct the jury that it could convict the defendant of attempted murder if it found that he intended to cause the death of Correa or another person in the group (see id.). And, in People v Cabassa (79 NY2d 722, 728 [1992], cert denied sub nom. Lind v New York, 506 U.S. 1011 [1992]), we concluded that there was sufficient evidence to support an attempted first-degree murder conviction where a gun was fired indiscriminately toward two pursuing police officers who were in the same patrol car and at a police officer standing on the street next to a roadblock.
Under this rationale, the identity of the specific police officer against whom defendant's murderous intent was directed is not an element of attempted murder in the first or second degree. As a result, the jury in this case was properly advised that it could convict defendant of attempted murder if defendant acted with the intent to kill, without specifying whether the intended victim was Detective Molina or Detective Weston (cf. People v Mateo, 2 NY3d 383, 406-408 [2004], cert denied 542 U.S. 946 [2004] [in first-degree murder prosecution, jury is not required to unanimously decide whether the defendant was the actual killer or commanded another to kill]). The trial court's refusal to instruct the jury that it had to unanimously determine which detective defendant intended to kill did not render the attempted murder counts duplicitous because each charged a single crime based on a single incidentengaging in conduct (the shooting at Detectives Molina and Weston) that tended to effect the crime of murder while acting with the intent to cause the death of a police officer or another person. Consequently, there is no basis to disturb the attempted second-degree murder conviction.
III
Defendant also maintains that he is entitled to a new trial because the prosecutor impermissibly used a peremptory challenge *58 against a female African-American prospective juror in violation of Batson v Kentucky (476 U.S. 79 [1986]). Defense counsel raised a Batson challenge during the second round of jury selection. When asked by the trial court to provide race-neutral reasons for the removal of this woman, the prosecutor stated that the prospective juror had held her hand over her mouth when answering questions, which indicated to the prosecutor that the juror had "something to hide." The prosecutor also claimed that the juror had "an unsettling gaze" that was "difficult to deal with," and remarked that the juror reminded her of a particular New York City judge. In addition, the prosecutor noted that the juror liked to read detective stories and "might have [an] expectation of what should be part of a case." Defendant did not claim that the prosecutor's reasons were pretextual. The trial court found the justifications for the peremptory challenge to be nondiscriminatory and denied defendant's Batson application.
"[I]n order to establish a prima facie case of discrimination in the selection of jurors under Batson, a defendant asserting a claim must show that the exercise of peremptory challenges by the prosecution removes one or more members of a cognizable racial group from the venire and that facts and other relevant circumstances support a finding that the use of these peremptory challenges excludes potential jurors because of their race" (People v Brown, 97 NY2d 500, 507 [2002]).
Once these showings are made, the burden then shifts to the People to respond with a race-neutral explanation for the peremptory challenge (see id.). "If a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination" (Purkett v Elem, 514 U.S. 765, 767 [1995]) or whether the reasons proffered by the prosecution were pretextual (see People v Allen, 86 NY2d 101, 104 [1995]).
We conclude that the record supports the trial court's determination that the prosecutor's justifications were race-neutral. The prosecutor's reasons for exercising the peremptory challenge focused on the juror's demeanor (placing her hand over her mouth and having an "unsettling gaze") and fondness for detective stories (which might cause her to have certain expectations about the trial evidence). Furthermore, the prosecutor's reference to a particular judge, although in "poor *59 taste" as noted by the Appellate Division (14 AD3d 320, 321 [2005]), was not facially race-based (see Purkett v Elem, 514 US at 768 ["Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral" (internal quotation marks omitted)]).[3] Because the People's burden "is met by offering any facially neutral reason for the challengeeven if that reason is ill-foundedso long as the reason does not violate equal protection" (People v Allen, 86 NY2d at 109), and the trial court's findings are entitled to deference (People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 U.S. 352 [1991]), we cannot say that the prosecutor's justifications for the use of the peremptory challenge were inadequate.
IV
Finally, defendant contends that the trial court erred in refusing to discharge an entire panel of prospective jurors after a comment about a possible witness was made by one member of the array. During the fourth round of jury selection and after 10 individuals had been sworn as jurors, the trial court read a list of potential witnesses to a panel of 27 prospective jurors, asking if they were familiar with any of those individuals. One individual replied that he was "good friends" with a detective whose name was on the list. When asked if this friendship would affect his ability to be fair and impartial, the prospective juror replied, "I think he's an honest guy so I would tend to be swayed by what he says."
The trial court promptly discharged that prospective juror for cause. Defendant, however, asked that all 26 other members of the panel also be removed because the detective was an important witness and they had heard the remark. The trial court denied defendant's request but later questioned the prospective jurors collectively to determine whether they had been influenced by comments made by any other prospective juror.
When instructing the panel on general principles regarding the trial, the court stated that "[e]ach witness's testimony must *60 be weighed upon its own merits" and asked "[i]f anyone thinks he or she may have feelings favorable or unfavorable for any witness you are bound by your oath to say that. Does anyone have an affirmative answer to that one?" Two persons expressed concerns about their ability to be fair and were excused by the court. The court then inquired if anyone had "any feeling about the police or have had experiences which would lead you to give a police officer's testimony any greater or lessor [sic] weight than anyone else's testimony?" None of the prospective jurors indicated that they were incapable of impartially judging a police officer's veracity. The next question to the panel was: "is there anything about any answers to any questions or any statements made by any other prospective juror that any of you feel might affect your ability to be fair and impartial in this case?" No one offered an affirmative reply to this question.
Based on the content of the prospective juror's statement, in conjunction with the court's inquiries and the responses thereto, there was no legal basis to dismiss the panel for cause. The removed juror's remark did not create a likelihood of substantial prejudice because it did not relate to defendant's guilt, refer to his reputation in the community, or provide an expert-like opinion regarding the likelihood that he had been falsely accusedstatements which may, depending on the circumstances, warrant additional remedial action by a trial court (see e.g. Mach v Stewart, 137 F3d 630, 633 [9th Cir 1997]; Moore v State, 156 Ga App 92, 93, 274 SE2d 107, 108 [Ct App 1980]). Furthermore, none of the prospective jurors indicated that the comment about the detective would affect his or her ability to be fair and impartial or would cause any of them to give a police officer's testimony more weight than other witnesses. We therefore conclude that there was no abuse of discretion by the court in declining to excuse the panel.
Accordingly, the order of the Appellate Division should be affirmed.
G.B. SMITH, J. (concurring).
I agree with the Court's conclusion that the order appealed from should be affirmed. After the prosecution set out its reasons for the peremptory strike of a female African-American prospective juror, defendant did not say anything further about her or make an attempt to seek clarification of the prosecution's ambiguous explanation comparing her to a former state Supreme Court justice. Thus, defendant did not make the specific and timely objections necessary *61 to: (1) apprise the court of the ambiguities inherent in this explanation and of his opposing arguments; and (2) give the court the opportunity to take any necessary remedial action. Thus, by failing to make an objection that the reason proffered by the prosecution was not clearly race/gender-neutral, defendant failed to preserve this argument for appellate review.
It should be emphasized, however, that after a defendant makes out a prima facie case of discrimination in the selection of jurors under Batson, the prosecution's explanation for the peremptory challenge must be unequivocally race/gender-neutral and related to the particular case to be tried (see Batson v Kentucky, 476 U.S. 79, 98 [1986]). These requirements must be adhered to even where the prosecution gives an explanation that is not clearly race/gender-neutral among explanations that are facially race/gender-neutral.[1]
Here, the Appellate Division concluded that the prosecution met its step two burden of putting forth a race-neutral explanation based on its ruling that "[t]he prosecutor's disparaging comparison of the panelist to a named individual . . . clearly referred to matters of personality and demeanor, but not race" (People v Wells, 14 AD3d 320, 321 [1st Dept 2005]).[2] This Court concluded "that the record supports the trial court's determination *62 that the prosecutor's justifications were race-neutral" and further ruled that: (1) the prosecutor's reasons for exercising the peremptory challenge focused on the prospective juror's demeanor; and (2) the "reference to a particular judge, although in `poor taste' . . ., was not facially race-based." (Majority op at 58-59.) Because one of the prosecutor's reasons for exercising a peremptory strike against this prospective juror was not unequivocally race/gender-neutral, I disagree with the above-mentioned conclusions reached by this Court and the Appellate Division.
As noted in the Court's opinion, the prosecution cited a number of explanations in support of the peremptory challenge at issue. The explanations are set forth in the following colloquy:
"[PROSECUTOR]: [The prospective juror] answered questions with her hand over her face, her hand over her mouth. That's something I'm very sensitive to. In my preparation of witnesses, [] part of what I tell people when I prepare them to testify [is] when someone is on the stand and talks with her hand over their mouth[,] to people it signifies as a matter of body language something to hide.
"In addition she has sort of an unsettling gaze that *63 I just found difficult to deal with and additionally she also reminded me, I have to say of [a named Supreme Court justice] which made me just somewhat anxious in a sort of an emotional way. So those were my concerns plus she reads she indicated affirmatively she read[s] detective stories, someone like that I think notwithstanding what she said might have expectation of what should be part of a case.
"THE COURT: I find that to be nondiscriminatory." (Emphasis added.)
The prosecutor's statement regarding how the prospective juror reminded her of a named Supreme Court justice, who is also an African-American woman, and how this made the prosecutor "anxious in a sort of [] emotional way," raised issues that should have been pursued during the voir dire. Not only is this statement insulting and irrational, it is wholly ambiguous. The proffered reason, on its face, is not clearly race/gender-neutral. Nor is it clearly race/gender-based, i.e., there is no indication from the prosecutor's explanation as to what about the prospective juror reminded the prosecutor of the named Supreme Court justice (e.g., the prosecutor did not mention that the demeanor of the prospective juror was similar to that of the named African-American woman). Nor is it clear from the explanation how the prospective juror made the prosecutor "anxious in a sort of [] emotional way."[3] Moreover, the prosecution's explanation, on its face, was not related to the instant matter.
Based on the foregoing, the trial court, before accepting this explanation as race/gender-neutral (and certainly before its ruling that the explanation was nondiscriminatory), should have conducted an inquiry (or directed that defendant conduct an inquiry) to clarify the prosecution's ambiguous explanation. *64 Because no such inquiry occurred here, no further explanation of the statement at issue was provided by the prosecution. Without clarification, this statement is not clearly race/gender-neutral. Because all of the explanations for the prosecution's strike of the prospective juror were not clearly race/gender-neutral, the trial court should have ruled that the prosecution did not meet its step two obligation under Batson.
Order affirmed.
NOTES
[1] Codefendant Grant and two other men involved in this criminal transaction pleaded guilty to various crimes.
[2] The duplicity principle is designed to protect the accused against successive prosecutions in violation of the Double Jeopardy Clause (People v First Meridian Planning Corp., 86 NY2d 608, 615 [1995]). It also ensures juror unanimity because
"[i]f two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of the offenses" (People v Keindl, 68 NY2d at 418).
[3] Although it may be possible that an unexplained comparison of a prospective juror to a specific person could carry an inference of discriminatory intent, if defendant believed that the oblique reference in this case had improper racial overtones that were not facially apparent, defense counsel should have made an adequate record to allow that claim to be considered by the trial court and reviewed on appeal (see People v James, 99 NY2d 264, 270 [2002] ["(a) party asserting a claim under Batson . . . should articulate and develop all of the grounds supporting the claim, both factual and legal" (internal quotation marks omitted)]; People v Smocum, 99 NY2d 418, 423-424 [2003]).
[1] In New York, service on a grand or petit jury is a civil right that cannot be arbitrarily denied (NY Const, art I, § 1; Civil Rights Law § 13 ["No citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a grand or petit juror in any court of this state on account of race, creed, color, national origin or sex"]).
Under the Equal Protection clauses of the federal and New York State constitutions (US Const, 14th Amend, § 1; NY Const, art I, § 11), peremptory challenges may not be used to exclude prospective jurors from jury service on the basis of race or gender (see Batson v Kentucky, 476 U.S. 79 [1986]; J. E. B. v Alabama ex rel. T. B., 511 U.S. 127 [1994]; People v Kern, 75 NY2d 638 [1990]; People v Allen, 86 NY2d 101 [1995]). A three-step process was set forth by the United States Supreme Court to address violations of this rule. First, a prima facie case of discriminatory purpose based on a pattern of peremptory challenges (e.g., all Hispanic or male jurors excluded), or other factors, must be established. Second, the prima facie case may be rebutted if the proponent of the strike(s) proffers a race/gender-neutral explanation that is related to the particular case to be tried. Third, the court must determine whether the explanation articulated is a pretext for discrimination (see Batson, 476 US at 96-98; see also J. E. B. v Alabama ex rel. T. B.).
[2] At "step two": (1) the explanation proffered by the prosecution need not be persuasive or plausible (see Purkett v Elem, 514 U.S. 765 [1995]; see also People v Allen, 86 NY2d at 109 [Court stated "step two is met by offering any facially neutral reason for the challengeeven if that reason is ill-foundedso long as the reason does not violate equal protection"]); and (2) "`the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral'" (Purkett v Elem, 514 US at 768, quoting Hernandez v New York, 500 U.S. 352, 360 [1991] [plurality op]; 500 U.S. at 374 [O'Connor, J., concurring in judgment]).
I do not agree with the position that "any" facially neutral explanation, no matter how implausible or ridiculous, as long as it comports with the strictures of equal protection, can rebut a defendant's prima facie case of race- or gender-based discrimination in jury selection. Under this formulation, there would be an inequity in terms of the burdens to be met by the opponent and proponent of the strike, i.e., the opponent of the strike has to establish a pattern of discrimination, or other discriminatory factors, while the proponent could meet its burden by putting forth rote, facially neutral explanations. Moreover, there is a potential for the trivialization of the voir dire process based on the types of explanations that can be advanced by the proponent of a strike. Specifically, since the improper use of peremptory challenges involves rights of a constitutional dimension, the proffered explanations, which essentially argue that the use of such challenges was proper, should reflect the seriousness of the rights involved. In my view, facially neutral explanations should at least be reasonable and, in accordance with Batson, related to the trial at hand (see Batson, 476 US at 98). Whether the proffered explanation is reasonable does not go to the court's step three analysis. A "reasonable explanation" requirement would merely ensure that the explanations make sense under the circumstances.
[3] As noted above, "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral" (Purkett v Elem, 514 US at 768). Moreover, this Court's conclusion that the prosecution's explanation was race-neutral was based, in part, on its statement that the explanation "was not facially race-based." These principles should only apply when a race/gender-neutral (or race/gender-based) explanation has been clearly set forth. However, in the instant case, where the prosecutor has put forth an explanation: (1) that is not clearly race/gender-neutral; (2) from which no clear intent of purpose (discriminatory or nondiscriminatory) can be gleaned; and (3) which is not discriminatory on its face, applying these principles necessarily leads to an erroneous result, i.e., a court would be required to find a race/gender-neutral explanation even where one was not clearly present. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4534720/ | NOT DESIGNATED FOR PUBLICATION
No. 120,688
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
REGINALD M. JOHNSON,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court, J. PATRICK WALTERS, judge. Opinion filed May 15, 2020.
Affirmed.
Angela M. Davidson, of Wyatt & Davidson, LLC, of Salina, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.
LEBEN, J.: Reginald Johnson was convicted of first-degree murder for shooting his
common-law wife at their home in Wichita in 2007. In 2018, he moved for habeas-corpus
relief, the second time he'd done so. That motion—like his first one—said that his court-
appointed trial counsel had been constitutionally inadequate. The district court denied the
motion without an evidentiary hearing.
On appeal, Johnson again claims ineffective assistance of his trial counsel, making
several arguments about a psychological evaluation that he says his counsel should have
disclosed to him and introduced at trial, either to supplement the defense his counsel did
make or to raise a different defense based on mental disease or defect. But the record
conclusively shows that Johnson isn't entitled to relief because nothing in the report
actually negates the critical facts leading to Johnson's conviction—that he intentionally
shot and killed his wife. So his counsel wasn't ineffective for failing to disclose it to him
or introduce it at trial. We therefore affirm the district court's decision to deny Johnson's
habeas motion without a hearing.
FACTUAL AND PROCEDURAL BACKGROUND
To set the stage for a discussion of Johnson's current claims, we first review the
proceedings that have taken place since Johnson was charged with first-degree murder in
2007. During his 2008 trial on that charge, Johnson didn't dispute that he had shot his
wife in their house; instead, his trial attorney, Ken Newton, argued that Johnson was
guilty of voluntary manslaughter, a less severe crime than first-degree murder. First-
degree murder as charged in Johnson's case meant the killing of a person committed
intentionally and with premeditation.
One way a person can commit voluntary manslaughter is to kill a person
"knowingly" and "in the heat of passion." K.S.A. 2019 Supp. 21-5404; see State v.
Johnson, 290 Kan. 1038, 1043-49, 236 P.3d 517 (2010). So Newton argued that Johnson
was in a fragile psychological state and then snapped when his wife described details of
her extramarital affair. As evidence of that psychological state, Johnson testified that he
had intended to commit suicide before his wife arrived at their house and that he had
blacked out during the shooting. Newton also presented testimony about Johnson's
history of depression and suicidal thoughts. But Newton decided not to introduce a
psychological report prepared by Dr. Molly Allen stating that a mental disease or defect
could have, when viewed in a specific way, contributed to Johnson's crime. And
according to Johnson, Newton never disclosed that report to him.
2
The jury ultimately rejected the voluntary-manslaughter argument and convicted
Johnson of first-degree murder. Our Supreme Court affirmed that conviction in 2010.
Johnson, 290 Kan. 1038. That concluded Johnson's direct appeal, the initial step of his
challenge to his conviction.
After Johnson completed his direct appeal, he challenged the conviction in a
habeas-corpus proceeding. Procedurally, that's done by a motion under K.S.A. 60-1507.
Since Johnson's present claim was denied by the district court in part because he had
brought a previous habeas motion, we will briefly review that first attempt. Johnson has
not included the full record related to it in this appeal, but earlier opinions of this court
describe what occurred. See Johnson v. State, No. 114,735, 2017 WL 3836912 (Kan App.
2017) (unpublished opinion), rev. denied 307 Kan. 987 (2018); Johnson v. State, No.
109,169, 2014 WL 1362929 (Kan. App. 2014) (unpublished opinion).
Johnson filed his first habeas motion in 2010, alleging ineffective assistance of
counsel, prejudicial trial errors, and double-jeopardy and due-process violations. Johnson
later filed an amended motion with more detail, but this court's opinions don't describe
the contents of that amended motion and it's not in the record before us. 2014 WL
1362929, at *2. The district court denied his motion after holding a nonevidentiary
hearing, but a panel of this court reversed that decision and sent the case back to the
district court for an evidentiary hearing. 2014 WL 1362929, at *10.
While preparing for that hearing, Johnson's court-appointed appellate attorney
received a copy of Dr. Allen's report. When the attorney showed that report to Johnson,
he said it was the first time he'd seen it; Johnson said he had tried to get a copy from his
trial attorney in 2012 and from the Sedgwick County District Court in 2013. In the report,
Dr. Allen said that Johnson's mental health could have contributed to the killing.
3
After reviewing the report, Johnson argued at his evidentiary hearing that his trial
attorney had been ineffective (1) by not investigating Johnson's mental health after
reviewing Dr. Allen's report and (2) by not presenting a defense based on mental disease
or defect at trial. Johnson also raised other ineffective-assistance claims, but they aren't
relevant to the present appeal. According to our court's opinion, the district court
"admitted testimony about Dr. Allen's report on whether Newton had conducted a proper
investigation, but it did not allow any testimony about whether Newton should have
raised a mental disease or defect defense because that issue had not been raised in
Johnson's K.S.A. 60-1507 motion." 2017 WL 3836912, at *3. The district court then
denied Johnson's habeas motion.
It's unclear why the district court found that Johnson's second claim, but not his
first, went beyond the scope of his original habeas motion. Presumably, Johnson didn't
raise any claims related to Dr. Allen's report in his original or amended habeas motion
because he didn't get a copy of the report until 2015. But Johnson argued both claims on
appeal. And our court considered the merits of Johnson's argument that his trial attorney
should have raised a mental-disease-or-defect defense. After reviewing the record,
including Dr. Allen's report, our court said that it could not second-guess Newton's
strategic decision to pursue another defense after he had sufficiently investigated
Johnson's mental health:
"Newton testified that prior to trial, he requested the psychological evaluation of Johnson
to determine the plausibility of putting on a mental disease or defect defense.
"After Newton reviewed Dr. Allen's report, he chose not to proceed with that line
of defense because Dr. Allen did not give a 'real definitive endorsement' of mental
disease or defect. After reviewing the report, he did not contact Dr. Allen about her report
or findings. Newton chose a different defense. Newton did not investigate the defense of
mental disease or defect any further. Newton testified that he chose not to call Dr. Allen
to testify because her recommendation was not strong enough to be successful. Newton
4
said he was looking for something more—her report seemed 'wishy-washy' to him.
Newton made an informed, professional choice not to pursue that defense. We are in no
place to second-guess his judgement at this point." 2017 WL 3836912, at *3.
The Kansas Supreme Court then declined further review; that ended the proceedings on
Johnson's first habeas motion. 2017 WL 3836912, rev. denied 307 Kan. 987 (2018).
Johnson filed his second habeas motion—the one involved in this appeal—in June
2018. Johnson raised several ineffective-assistance claims against his trial attorney for the
attorney's failure to raise a mental-disease-or-defect defense at trial based on Dr. Allen's
report. The district court denied Johnson's motion without a hearing, finding that
Dr. Allen's report wasn't exculpatory and that Johnson's claim was procedurally barred
because it was untimely and successive. Johnson then appealed to our court.
ANALYSIS
When the district court denies habeas relief without holding a hearing, we
independently review the motion and case file to determine whether they conclusively
show that the prisoner wasn't entitled to relief. In doing so, we look to see whether the
movant has set out specific factual allegations that would merit an evidentiary hearing.
Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). Johnson asks us to find
that he provided enough factual support to get an evidentiary hearing on his ineffective-
assistance claims. So what Johnson needs to show on appeal is that he provided specific
facts that, if proven at an evidentiary hearing, would be adequate to conclude that his trial
attorney provided ineffective assistance.
On appeal, Johnson argues that his trial attorney should have presented a mental-
disease-or-defect defense, saying that "[s]ufficient evidence indicated Mr. Johnson's
shooting of his wife stemmed from a mental disease or defect." Our court addressed that
5
issue when Johnson appealed the district court's denial of his first habeas motion. See
Johnson, 2017 WL 3836912, at *3-4. But the State hasn't argued in this appeal that
Johnson's claim is barred by res judicata, the legal doctrine that prevents a litigant from
raising issues that have previously been resolved by the courts. See Woods v. State, 52
Kan. App. 2d 958, Syl. ¶ 1, 379 P.3d 1134 (2016). And we decline to raise that issue on
our own.
Johnson also makes two other arguments on appeal related to Dr. Allen's report:
(1) that Dr. Allen's report should have been introduced to supplement his trial attorney's
voluntary-manslaughter defense; and (2) that his trial attorney should have disclosed the
report to him before trial. Johnson doesn't show that either of these arguments was raised
before the district court; nor does he explain why he should be allowed to raise them for
the first time on appeal.
The State doesn't address the merits of these arguments. It simply contends that
two procedural hurdles preclude Johnson from bringing this habeas claim at all. Because
Johnson filed an earlier K.S.A. 60-1507 motion, the State notes that he must show
"exceptional circumstances" to prevent the dismissal of his motion as successive and an
abuse of remedy. K.S.A. 2019 Supp. 60-1507(c); see Littlejohn v. State, 310 Kan. 439,
443-46, 447 P.3d 375 (2019). And because motions under K.S.A. 60-1507 must be filed
within one year of the conclusion of the defendant's original appeal, Johnson must show
that failure to consider his habeas claim—which he filed well past that deadline—would
lead to "manifest injustice." K.S.A. 2019 Supp. 60-1507(f). The State says Johnson hasn't
made either of these showings.
In the somewhat unique posture of this case, we are inclined to consider the merits
of Johnson's appeal because Johnson claims that he wasn't able to get a copy of
Dr. Allen's report until 2015—well after he had filed his initial K.S.A. 60-1507 motion.
6
In addition, the district court limited Johnson's use of the report during his first round of
habeas proceedings.
We do recognize that an appellate court generally does not consider issues raised
for the first time on appeal. State v. Rizo, 304 Kan. 974, 978, 377 P.3d 419 (2016). There
are exceptions to this rule, including when considering the issue is necessary to serve the
ends of justice or to prevent the denial of fundamental rights (such as the right to
counsel). 304 Kan. at 978-79. Here, though, Johnson also fails to explain why this issue is
properly before this court, as required by Supreme Court Rule 6.02(a)(5) (2020 Kan. S.
Ct. R. Annot. 34). State v. Swint, 302 Kan. 326, 335-36, 352 P.3d 1014 (2015). Failure to
comply with this rule also usually means that the court won't consider any claims raised
for the first time on appeal. See 302 Kan. at 335-36. But the rules about claims raised for
the first time on appeal are prudential, not jurisdictional, so we still may consider the
merits of an issue raised for the first time on appeal. See Rizo, 304 Kan. at 979. Here,
there is a viable argument that considering the issue is necessary to prevent the denial of
the fundamental right to counsel, so we will address the merits of Johnson's new claims.
See 304 Kan. at 978-79.
Considering the merits, then, to demonstrate that his counsel was ineffective,
Johnson would have to show two things: (1) that his trial attorney's work was below
minimum standards and (2) that the attorney's substandard work prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); Mattox v. State, 293 Kan. 723, Syl. ¶ 1, 267 P.3d 746 (2011). To show
prejudice, Johnson would need to show that there was a reasonable probability that the
jury would have reached a different result but for the substandard work by his attorney.
Breedlove v. State, 310 Kan. 56, Syl. ¶ 3, 445 P.3d 1101 (2019). With that in mind, let's
return to the three claims Johnson argues in this appeal.
7
The first is that his trial attorney should have introduced Dr. Allen's report as part
of a defense based on a mental disease or defect. By statute, mental disease or defect is a
defense to a crime only when it prevents the defendant from forming the culpable mental
state that the crime requires. K.S.A. 22-3220; see Kahler v. Kansas, 589 U.S. ___, 140 S.
Ct. 1021, 1025-26, ___ L. Ed. 2d ___ (2020). (We're citing to the criminal statutes in
effect at the time Johnson killed his wife, though similar statutes remain today.) The
culpable mental state for first-degree murder, the crime Johnson was charged with, was
that the crime have been committed intentionally, meaning through conduct that was
"purposeful and willful and not accidental." K.S.A. 21-3201(b). Significantly, though,
Johnson's defense at trial wasn't a challenge to whether he shot his wife intentionally.
Rather, Johnson argued for a voluntary manslaughter conviction that also required
intentional conduct. The difference was that Johnson argued at trial that he acted in the
heat of passion, not with premeditation. See Johnson, 290 Kan. at 1043-44.
Of course, the jury rejected Johnson's defense. It concluded that he shot his wife
intentionally and with premeditation. And Johnson doesn't explain how Dr. Allen's report
undermines either of those conclusions.
He highlights language in the report saying that "he could be said to have [had] a
mental disease or defect that contributed to the crime in question." But he omits the rest
of the paragraph, which details Johnson's depression, his tendency for dysfunctional
relationships, and his unstable sense of self. Only after mentioning those specific mental-
health issues did Dr. Allen say that "[i]n this sense" Johnson could be said to have a
mental disease or defect that contributed to shooting his wife:
"'Mr. Johnson most likely has had an affective disorder, and a character disorder,
the latter of which is characterized by an individual having chronically disturbed
relationships with others. In Mr. Johnson's case, this means that he lacks a stable sense of
self, and tends to be drawn to a chaotic and dysfunctional relationship with a primary
8
partner. In this sense, he could be said to have a mental disease or defect that contributed
to the crime in question." (Emphasis added.) Johnson, 2017 WL 3836912, at *3.
The legal problem Johnson faces is that the legal defense of mental disease or
defect doesn't work in that way. Being drawn to chaotic and dysfunctional relationships
doesn't absolve someone of the legal responsibility for committing murder. And mental
disease or defect may mean something different to a psychologist than it does as a legal
defense to murder. Legally, Johnson would have a mental-disease-or-defect defense only
if he lacked the ability to make the intentional act of shooting his wife intending to kill
her. None of the psychological characteristics mentioned by Dr. Allen suggest that
Johnson was unable to form the mental state that was then the basis of first-degree
murder—intending to shoot his wife as a purposeful act. And the jury found that
Johnson's act was both intentional and premeditated. As our court noted in the appeal
from Johnson's first habeas claim: "Johnson does not explain how [Dr. Allen's] report or
further investigation would have negated premeditation." 2017 WL 3836912, at *4.
In sum, Johnson has not shown that a mental-disease-or-defect legal defense was
available to him. K.S.A. 22-3220 provided that this defense could succeed only if it
showed that the defendant lacked a mental state required as an element of the charged
offense. Johnson doesn't show how Dr. Allen's report shows a lack either of intentionality
or premeditation, so his attorney's failure to present the report at trial isn't constitutionally
deficient representation.
Johnson's next claim is that his trial attorney should have introduced Dr. Allen's
report to supplement the defense that he did put on at trial—that Johnson was guilty of
voluntary manslaughter but not first-degree murder. As we've already noted, both
voluntary manslaughter and first-degree murder required an intentional act; Johnson's
defense was that the act was done in the heat of passion, not with premeditation. See
Johnson, 290 Kan. at 1043-44; Johnson, 2014 WL 1362929, at *2 ("The thrust of
9
Johnson's defense at trial was that he killed [his wife] in the heat of passion or upon a
sudden quarrel, rendering the death a voluntary manslaughter."). But as we've just said,
Dr. Allen's report doesn't undermine the jury's conclusion that Johnson killed his wife
intentionally and with premeditation. Nor does it directly address Johnson's mental state
at the time of the shooting; his trial attorney didn't perform deficiently by failing to use it
to supplement his defense.
Johnson's final claim is that it was unreasonable for his trial attorney not to
disclose Dr. Allen's report to him. Johnson knew, of course, that Dr. Allen had evaluated
him, but says that he didn't receive a copy of the report until 2015, shortly before the
evidentiary hearing on his first habeas motion. Even if we were to assume that the
attorney should have disclosed the report to Johnson, we do not see how that would
constitute inadequate representation under Strickland since no showing has been made
that the use of the report at trial could have changed the trial's outcome. We see no basis
to conclude that Johnson's trial attorney was constitutionally ineffective by not showing
the report to Johnson.
We have reviewed Johnson's K.S.A. 60-1507 motion and the record before the
district court. We find no factually supported allegation that Johnson's trial attorney
performed deficiently, so we agree with the district court's decision to deny Johnson's
ineffective-assistance claims without holding an evidentiary hearing.
We therefore affirm the district court's judgment.
10 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/6495504/ | USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 1 of 23
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10432
____________________
JONATHAN E. PERLMAN,
as court appointed Receiver,
Plaintiff-Appellant,
versus
PNC BANK, N.A.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-61390-RS
____________________
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 2 of 23
2 Opinion of the Court 21-10432
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY*, Dis-
trict Judge.
WILSON, Circuit Judge:
Jonathan Perlman, a court-appointed receiver, appeals the
district court’s dismissal of his aiding and abetting claims on behalf
of the companies in receivership (the Receivership Entities) against
PNC Bank. The district court granted PNC’s Rule 12(b)(1) motion
to dismiss for lack of subject matter jurisdiction because it found
that Perlman lacked standing to bring those claims. The district
court relied on our decision in Isaiah v. JPMorgan Chase Bank, 960
F.3d 1296, 1308 (11th Cir. 2020), which held that the Receivership
Entities must have “at least one innocent officer or director” and
thus be “honest corporations” for standing purposes. Perlman
moved for reconsideration and for leave to amend, but the district
court denied both of those motions.
On appeal, Perlman argues that he has standing because he
was appointed pursuant to Section 501.207(3) of the Florida Decep-
tive and Unfair Trade Practices Act (FDUTPA). According to Perl-
man, that statute negates the standing requirement in Isaiah that a
receiver must allege that the Receivership Entities had at least one
innocent officer or director. We hold that even assuming that
*Honorable Anne Conway, United States District Judge for the Middle District
of Florida, sitting by designation.
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 3 of 23
21-10432 Opinion of the Court 3
Section 501.207(3) applies, it does not rectify the standing issue in
Isaiah because it does not expressly address the imputation of
wrongful acts between the Receivership Entities themselves and
their insiders. Accordingly, we affirm the district court’s orders
granting PNC’s Rule 12(b)(1) motion for lack of subject matter ju-
risdiction and denying Perlman’s motions for reconsideration and
leave to amend.
I. FACTUAL AND PROCEDURAL BACKGROUND 1
Before we detail the district court proceedings below, we
must first introduce a few players involved in this case. At the fore-
front is Jeremy Marcus, the main perpetrator behind a widespread
debt relief scam. Marcus’s scheme involved a nationwide enter-
prise of 85 entities. These entities were controlled by Marcus, and
he employed telemarketers at these entities to deceive tens of thou-
sands of consumers into thinking they were being offered low-in-
terest loans to settle their debts. Unfortunately, the consumers did
not receive low-interest loans and were left in worse financial posi-
tions.
While Marcus lived lavishly for some time, profiting off
fraudulently acquired money from his victims, it was not long
1 Since we are reviewing the district court’s grant of PNC’s facial attack on
subject matter jurisdiction, we take the allegations in Perlman’s complaint as
true. See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,
1279 (11th Cir. 2009). Accordingly, these facts come from Perlman’s Amended
Complaint.
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 4 of 23
4 Opinion of the Court 21-10432
before government enforcement agencies came knocking. The
Federal Trade Commission (FTC) and the Florida Attorney Gen-
eral (collectively, the Enforcement Agencies) filed a complaint
against Marcus for various consumer fraud violations, referred to
as the Enforcement Action. Often in cases involving fraud, an en-
forcement agency will move to have a court-appointed receiver
take control over the defendant’s property to ensure that assets are
not dissipated or wasted. 2 Given Marcus’s record, the Enforce-
ment Agencies thought it would be prudent to have someone other
than Marcus responsible for his companies’ assets. This is where
Jonathan Perlman comes into the story.
In the Enforcement Action, the United States District Court
for the Southern District of Florida (the Enforcement Court) en-
tered a temporary restraining order appointing Perlman as the re-
ceiver for several of Marcus’s companies, the Receivership Entities.
Perlman’s role in the Enforcement Action was to investigate the
affairs of the Receivership Entities and report to the Enforcement
Agencies. Perlman’s investigation confirmed the Enforcement
2 At the time of the Enforcement Action, the FTC could obtain a court-ap-
pointed receiver. But considering the Supreme Court’s decision in AMG Cap-
ital Management, LLC v. FTC, 141 S. Ct. 1341 (2021), we recently held that a
court-appointed receiver is no longer an appropriate equitable remedy under
Section 13(b) of the Federal Trade Commission Act. FTC v. On Point Cap.
Partners LLC, 17 F.4th 1066, 1078 (11th Cir. 2021). However, because this
case also involved Section 501.207(3) of the FDUTPA, which authorizes the
court to appoint a receiver, our holding in On Point Capital Partners is not
dispositive of this appeal.
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 5 of 23
21-10432 Opinion of the Court 5
Agencies’ material allegations against Marcus, who then stipulated
to a permanent injunction and a monetary judgment of roughly
$85 million.
Turning to the district court proceedings in this appeal, Perl-
man, acting on behalf of the Receivership Entities, sued PNC in a
separate action for its involvement with Marcus’s scheme. Rele-
vant to this appeal, Perlman brought claims for aiding and abetting
breach of fiduciary duty (Count I) and aiding and abetting conver-
sion (Count II). Perlman alleged that PNC assisted Marcus by
providing bank accounts for the Receivership Entities so that Mar-
cus could carry out his scheme. The Receivership Entities were
harmed, according to Perlman, because Marcus diverted funds
from the Receivership Entities for a non-business purpose, thus
breaching his fiduciary duties owed to them and converting their
money. In turn, PNC allegedly aided and abetted Marcus by
providing banking services, despite many red flags showing Marcus
was committing fraud.
Following our decision in Isaiah, PNC moved under Federal
Rule of Civil Procedure 12(b)(1) to dismiss Counts I and II for lack
of subject matter jurisdiction, arguing that Perlman failed to allege
the presence of an innocent director or officer for purposes of
standing. Notably, Perlman did not move to amend his complaint
to include the requisite allegation and thereby attempt to cure the
standing issue. Instead, Perlman responded to PNC’s motion by
arguing that he did have standing, notwithstanding Isaiah, because
he was appointed under Section 501.207(3) of the Florida
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 6 of 23
6 Opinion of the Court 21-10432
Deceptive and Unfair Trade Practices ACT (FDUTPA), which au-
thorizes a court-appointed receiver “to bring actions in the name
of and on behalf of the defendant enterprise, without regard to any
wrongful acts that were committed by the enterprise . . . .” Fla.
Stat. § 501.207(3). Thus, Perlman argued, it is irrelevant whether
the Receivership Entities have an innocent director or stockholder
because the FDUTPA provides that the wrongful acts of the Re-
ceivership Entities are not imputed to the Receiver for standing
purposes. In support of his argument that he was appointed under
the FDUTPA, Perlman cited to various docket entries from the En-
forcement Action.
PNC then replied to Perlman by arguing that he was not ap-
pointed under Section 501.207 of the FDUTPA, but rather under
Section 13(b) of the Federal Trade Commission Act (FTCA). In
support, PNC pointed to the Enforcement Agencies’ motion for a
temporary restraining order that requested the appointment of a
receiver. In that document, the Enforcement Agencies cited only
to Section 13(b) as the basis for the Enforcement Court’s authority
to appoint a receiver. The district court agreed with PNC, also not-
ing that “[n]one of the orders regarding the appointment of the Re-
ceiver explicitly state the legal authority for appointment of the Re-
ceiver.” Then, the district found that “[a] review of the record in
the Enforcement Action indicates that [Perlman] was appointed
pursuant to section 13(b) of the [FTCA].” The court therefore con-
cluded that Isaiah applies and granted PNC’s Rule 12(b)(1) motion
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 7 of 23
21-10432 Opinion of the Court 7
to dismiss because Perlman’s Amended Complaint contained “no
allegations of an honest board member, officer, or shareholder.”
Following the district court’s dismissal of Counts I and II,
Perlman moved for reconsideration and for leave to amend his
complaint to allege that he was appointed under the FDUTPA.
The district court denied these motions and this timely appeal fol-
lowed.
II. STANDARD OF REVIEW
“In reviewing a district court’s dismissal of a complaint un-
der Rule 12(b)(1) for lack of subject matter jurisdiction, we review
the district court’s legal conclusions de novo, including the court’s
conclusion concerning standing.” Houston v. Marod Supermar-
kets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013).
III. DISCUSSION
In Isaiah, we raised the issue of whether a court-appointed
receiver had standing to bring “common law tort claims against
third parties to recover damages for the fraud perpetrated by the
corporation’s insiders.” Isaiah, 960 F.3d at 1306. Applying Florida
law, we noted that:
[U]nless the corporation in receivership has as at least
one honest member of the board of directors or an
innocent stockholder, the fraud and intentional torts
of the insiders cannot be separated from those of the
corporation itself and the corporation cannot be said
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 8 of 23
8 Opinion of the Court 21-10432
to be an entity separate and distinct from the individ-
ual tortfeasors.
Id. We pointed to the distinction “between an honest corporation
with rogue employees, which can pursue claims for the fraud or
intentional torts of third parties while in receivership, and a sham
corporation created as the centerpiece of a [fraudulent] scheme,
which cannot pursue such claims.” Id. at 1307. For the latter, it is
“not the corporation but the individual customers who suffered in-
jury as a result of the [fraudulent] scheme, and who may have
rights to pursue claims against third parties that allegedly aided and
abetted that scheme.” Id.
The “axiomatic” principle from Isaiah is “that a receiver ob-
tains only the rights of action and remedies that were possessed by
the person or corporation in receivership.” Id. at 1306. If the cor-
poration in receivership is one that is operated for the sole purpose
of committing fraud, and thus not an “honest corporation,” then
that corporation “cannot be said to have suffered an injury from
the scheme it perpetrated.” Id. at 1306. Since the receiver “obtains
only the rights of actions and remedies” of the corporation in re-
ceivership, it follows that the receiver likewise would not have suf-
fered an injury for purposes of bringing such claims.
Even though the district court did not address Section
501.207(3) of the FDUTPA, that statute does not impact the re-
quirement that Perlman must allege the presence of at least one
innocent director or stockholder. Without such an allegation, the
tortious acts committed by Marcus cannot be separated from the
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 9 of 23
21-10432 Opinion of the Court 9
Receivership Entities and the Receivership Entities could not have
suffered an injury. Section 501.207(3)’s language that a receiver
may bring actions without regard to the wrongful acts of the de-
fendant enterprise does not correct this deficiency in Perlman’s
complaint.
Like the receiver in Isaiah, Perlman is bringing Florida com-
mon law tort claims against a third party for aiding and abetting
breach of fiduciary duty and conversion. For Perlman to have
standing, the Receivership Entities must have suffered an injury.
However, if there is no innocent director or stockholder in those
Receivership Entities, then the wrongful acts of Marcus cannot be
separated from the Receivership Entities and the Receivership En-
tities cannot be said to have suffered an injury.
Perlman concedes that he cannot include an allegation of an
innocent director or stockholder in his complaint. See Oral Argu-
ment Recording at 7:44–7:52. Thus, we must determine if Section
501.207(3) cures this deficiency. The relevant provision provides:
Upon motion of the enforcing authority . . . the court
may make appropriate orders, including but not lim-
ited to, appointment of a . . . receiver . . . to bring ac-
tions in the name of and on behalf of the defendant
enterprise, without regard to any wrongful acts that
were committed by the enterprise.
Fla. Stat. § 501.207(3).
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 10 of 23
10 Opinion of the Court 21-10432
A plain reading of this statute tells us three things. One, Sec-
tion 501.207(3) provides that a receivership is an appropriate rem-
edy in an enforcement action involving violations of the FDUTPA.
Two, the court can appoint a receiver to bring actions on behalf of
the Receivership Entities. Three, the receiver may bring those ac-
tions notwithstanding any wrongful conduct by the Receivership
Entities or their insiders.
What that statute does not tell us, however, is whether the
wrongful acts of an insider (in this case, Marcus), can be separated
from the Receivership Entities themselves. As we noted in Isaiah,
unless the wrongful conduct of the insiders can be separated from
the entities in receivership, by way of an innocent director or stock-
holder, then the entities cannot be said to have suffered an injury.
Perlman argues that the phrase “without regard to any wrongful
acts that were committed by the enterprise” acts to separate the
wrongful conduct from the companies. See id. However, that stat-
utory language does not address the relationship between a corpo-
ration’s insiders and the corporation itself. Instead, it only ad-
dresses the relationship between the receiver and the corporations
in receivership or insiders of those corporations.
Perlman does not cite to any cases interpreting Section
501.207(3), so we are limited to the plain language of the statute.
While the statute might provide that the wrongful acts of the Re-
ceivership Entities are not imputed to Perlman, this does not
change the fact that absent an allegation of an innocent director or
stockholder, the Receivership Entities cannot be said to have
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 11 of 23
21-10432 Opinion of the Court 11
suffered an injury for purposes of common law tort claims against
third parties. Therefore, even assuming that Perlman was ap-
pointed as a receiver under Section 501.207(3), that statute does not
change the outcome of this case.
IV. CONCLUSION
While the parties spend much of their briefs disputing the
applicability of Section 501.207(3) of the FDUTPA, we assume for
purposes of this appeal that the statute applies. However, we hold
that Section 501.207(3) does not overcome Isaiah’s mandate that
Perlman must allege the presence of at least one innocent director
or stockholder to have standing to bring his aiding and abetting
claims against PNC. Accordingly, we affirm the district court’s dis-
missal of those claims. 3
AFFIRMED.
3 Perlman’s motion to supplement the record and motion to dismiss the ap-
peal for lack of standing and subject matter jurisdiction, which have been car-
ried with the case, are DENIED. We need not consider the supplemental rec-
ords submitted in order to resolve this case. Further, PNC’s argument that
the Supreme Court’s decision in AMG Capital deprives this court of subject
matter jurisdiction is without merit. This case is distinguishable from AMG
Capital because it involves not only Section 13(b) of the FTCA, but also Sec-
tion 501.207(3) of the FDUTPA, which authorizes the court to appoint a re-
ceiver.
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 12 of 23
21-10432 ROSENBAUM, J., Dissenting 1
ROSENBAUM, Circuit Judge, Dissenting:
“Corporations are creatures of state law.” Burks v. Lasker,
441 U.S. 471, 478 (1979). So it makes sense that “corporate law is
overwhelmingly the province of the states.” Freedman v.
magicJackVocaltec Ltd., 963 F.3d 1125, 1132 (11th Cir. 2020) (cita-
tion and quotation marks omitted). And here, the State of Florida
spoke clearly in 2006, when it amended Florida Statutes §
501.207(3) of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”) to effectively define a corporation in the hands of a
Florida receiver as a different entity (for purposes of standing in
FDUTPA-authorized claims) than the alter-ego corporation that
preceded the receivership’s existence and participated in the fraud.
Most respectfully, the Majority Opinion’s reading of the
amended language to the contrary deprives the language of func-
tion and renders it surplusage. I would conclude that the Receiv-
ership Entities here, as led by Receiver Perlman, have sufficiently
alleged that PNC’s acts injured them and that they therefore enjoy
standing to sue PNC for aiding and abetting Marcus’s breach of fi-
duciary duty and aiding and abetting Marcus’s conversion of the
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 13 of 23
2 ROSENBAUM, J., Dissenting 21-10432
Receivership Entities’ property. 1 Because the Majority Opinion
does not reach this same conclusion, I respectfully dissent.
I. Under Florida law, in 2003, Freeman established the rule
that a receiver acting on behalf of a former alter-ego corpo-
ration lacks standing to pursue claims against third parties
who allegedly aided and abetted the former alter-ego corpo-
ration in its intentional torts.
To explain why Perlman has standing to pursue claims on
behalf of the Receivership Entities against third parties who alleg-
edly aided and abetted the corporations in their wrongful acts be-
fore they entered receivership, we must begin with Freeman v.
Dean Witter Reynolds, Inc., 865 So. 2d 543, 550 (Fla. Dist. Ct. App.
2003). In Freeman, the Grazianos had perpetrated a Ponzi scheme
through their company called NorthAmerican. See id. at 545–46.
The state trial court appointed Freeman as a receiver for the Ponzi
scheme. Id. at 546. Freeman then filed suit against third parties
whom he alleged had helped the Grazianos and NorthAmerican
perpetrate their fraud. See id. at 546–48. Among other claims,
Freeman alleged that the third parties aided and abetted the Grazi-
anos’ and NorthAmerican’s fraud and the Grazianos’ breaches of
fiduciary duties to NorthAmerican. Id. at 548.
1 The Majority Opinion does not address the causation and redressability
prongs of standing, but as I explain later in this dissent, they are also satisfied
here.
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 14 of 23
21-10432 ROSENBAUM, J., Dissenting 3
The Florida intermediate appellate court affirmed the trial
court’s dismissal of Freeman’s claims because it concluded that
Freeman, as receiver, stood in the shoes of the Grazianos and
NorthAmerican. See id. at 550–53. As the Grazianos and
NorthAmerican could not have been said to have suffered an injury
from the scheme they themselves perpetrated, the Florida court
reasoned, neither could Freeman. See id.
In reaching this conclusion, the court recognized that,
“[a]lthough a receiver receives his or her claims from the entities in
receivership, a receiver does not always inherit the sins of his pre-
decessors.” Id. at 550. For instance, the court pointed to actions
that the corporation, through the receiver, could bring directly
against the principals or the recipients of fraudulent transfers of cor-
porate funds to recover assets rightfully belonging to the corpora-
tion and taken before the receivership. Id. at 551. As the court
explained, the corporation could bring those types of actions be-
cause it is considered “‘cleansed’ through receivership.” Id.
But in Freeman, the court stated that was not the case when
the predecessor corporation served as the “alter ego” of the wrong-
doers, without a true separate corporate identity. In that situation,
the court continued, Florida law attributed the bad acts of the pre-
decessor alter-ego corporation to the receiver. Id. at 551. As the
court explained, when “the entities in receivership do not include
a corporation that has at least one honest member of the board of
directors or an innocent stockholder” (and unlike when the receiv-
ership entities do have an honest member or stockholder), it could
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 15 of 23
4 ROSENBAUM, J., Dissenting 21-10432
not “perceive a method to separate the fraud and intentional torts
of the insiders from those of the corporation itself.” Id. at 551. As
a result, the court concluded that only the victims of the Ponzi
scheme suffered injuries, so only they “may have rights to pursue
a claim against” the third parties for resulting damages. Id. at 553.
In other words, the corporation was not “cleansed” for purposes of
such causes of action, and Freeman, as the receiver of the alter-ego
corporation NorthAmerican, did not have standing to seek dam-
ages from third parties for injuries NorthAmerican allegedly helped
the third parties to inflict upon itself.
II. The Florida legislature amended Florida Statutes
§ 501.207(3) in 2006 to ensure that a receiver acting on behalf
of a former alter-ego corporation had standing to pursue
claims against third parties who allegedly aided and abetted
the former alter-ego corporation in carrying out its inten-
tional torts.
The Florida legislature apparently was not fond of Free-
man’s conclusion that receivers of predecessor alter-ego corpora-
tions could not pursue a cause of action against third parties be-
cause they stood in the predecessor corporation’s shoes. So in
2006, the Florida legislature amended § 501.207(3) of FDUTPA to
enable a receiver “to pursue an action under [FDUTPA] on behalf
of a defendant corporation in receivership against a third party who
played some role in the alleged wrongdoing.” Fla. Sen. Judiciary
Comm. Fla. Staff Analysis, S.B. 202 (Apr. 21, 2006) § III. Effect of
Proposed Changes. Towards that end, the Florida legislature
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21-10432 ROSENBAUM, J., Dissenting 5
added the words, “to bring actions in the name of and on behalf of
the defendant enterprise, without regard to any wrongful acts that
were committed by the enterprise” to § 501.207(3). 2
Obviously, the Florida legislature went to the trouble of add-
ing these words to § 501.207(3) to change the effect of the statute.
2 The emphasized portions below show the changes that the 2006 amendment
made to § 501.207(3):
(3) Upon motion of the enforcing authority or any interested
party in any action brought under subsection (1), the court
may make appropriate orders, including, but not limited to,
appointment of a general or special magistrate or receiver or
sequestration or freezing of assets, to reimburse consumers or
governmental entities found to have been damaged; to carry
out a transaction in accordance with the reasonable expecta-
tions of consumers or governmental entities; to strike or limit
the application of clauses of contracts to avoid an unconscion-
able result; to bring actions in the name of and on behalf of the
defendant enterprise, without regard to any wrongful acts that
were committed by the enterprise; to order any defendant to
divest herself or himself of any interest in any enterprise, in-
cluding real estate; to impose reasonable restrictions upon the
future activities of any defendant to impede her or him from
engaging in or establishing the same type of endeavor; to order
the dissolution or reorganization of any enterprise; or to grant
legal, equitable, or other appropriate relief. The court may as-
sess the expenses of a general or special magistrate or receiver
against a person who has violated, is violating, or is otherwise
likely to violate this part. Any injunctive order, whether tem-
porary or permanent, issued by the court shall be effective
throughout the state unless otherwise provided in the order.
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6 ROSENBAUM, J., Dissenting 21-10432
If the statute functioned the way the Florida legislature wished it
to, the legislature would have had no reason to amend it. So the
words “to bring actions in the name of and on behalf of the defend-
ant enterprise, without regard to any wrongful acts that were com-
mitted by the enterprise” must have altered the effect of the statute
from what it was before the amendment.
After all, when we construe a statute, we “first consider[] the
text of the statute.” Nunes v. Herschman, 310 So. 3d 79, 81 (Fla.
Dist. Ct. App. 2021). And “a basic rule of statutory construction
provides that the Legislature does not intend to enact useless pro-
visions, and courts should avoid readings that would render part of
a statute meaningless.” Heart of Adoptions, Inc. v. J.A., 963 So. 2d
189, 198 (Fla. 2007) (citation and quotation marks omitted). So we
must consider the text of the statute both before and after the
amendment and give effect to the change.
As I have noted, before the amendment, Freeman held that
a receiver acting on behalf of a former alter-ego corporation could
not bring claims against third parties for allegedly contributing to
the former alter-ego corporation’s intentional torts because the for-
mer alter-ego corporation’s bad acts were attributed to the re-
ceiver. On the other hand, a receiver acting on behalf of a corpo-
ration who had at least one innocent director or owner could bring
such claims because Florida courts viewed the corporation in that
situation to have been “cleansed” by the appointment of the re-
ceiver.
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21-10432 ROSENBAUM, J., Dissenting 7
The addition of the words “to bring actions in the name of
and on behalf of the defendant enterprise, without regard to any
wrongful acts that were committed by the enterprise” in no way
change the receiver’s abilities or alter his standing in the second
(non-former-alter-ego corporation) scenario. Nor is it clear to me
that these words otherwise have any effect unless they change the
ability of the receiver in the first situation to bring claims on behalf
of the former alter-ego corporation against third parties for alleg-
edly aiding and abetting the former alter-ego corporation’s inten-
tional torts. After all, the added text specifies that a receiver acting
on behalf of a corporation is empowered “to bring actions in the
name of and on behalf of the defendant enterprise, without regard
to any wrongful acts that were committed by the enterprise.” FLA.
STAT. § 501.207(3) (emphasis added). In other words, the Florida
legislature effectively redefined corporate law to recognize that a
receiver’s appointment essentially cleanses not only those corpora-
tions that have at least one innocent director or shareholder but
also those that do not, for purposes of a receiver’s ability to bring
claims in the name of the former alter-ego corporation.
But the Majority Opinion’s interpretation of the amendment
renders the amendment a nullity and contradicts the amendment’s
plain language. In the Majority Opinion’s view, the amendment
“tells us three things”:
One, Section 501.207(3) provides that a receivership
is an appropriate remedy in an enforcement action in-
volving violations of the FDUTPA. Two, the court
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8 ROSENBAUM, J., Dissenting 21-10432
can appoint a receiver to bring actions on behalf of
the Receivership Entities. Three, the receiver may
bring those actions notwithstanding any wrongful
conduct by the Receivership Entities or their insiders.
Maj. Op. at 9–10. As Freeman shows, the first and second items
that the Majority Opinion identifies were the case before the
amendment. So under the Majority Opinion’s reading of the
amendment, these two things fulfill no function.
And the way the Majority Opinion reads the third—to au-
thorize the receiver to bring actions on behalf of only those corpo-
rations that had at least one innocent director or shareholder—pro-
vides for precisely the same state of the law as when Freeman is-
sued and before the Florida legislature amended § 501.207(3). Put
another way, the Majority Opinion reads the 2006 amendment to
do nothing. That cannot be right. See Heart of Adoptions, Inc.,
963 So. 2d at 198.
The amendment must have some function. Id. In my view,
the plain language, as I have explained, identifies that function: to
enable the receiver of a former alter-ego corporation to bring
claims against third parties for allegedly aiding and abetting the for-
mer alter-ego corporation’s intentional torts.
The legislative history of the amendment to § 501.207(3)
confirms this understanding. The Florida Senate Judiciary
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21-10432 ROSENBAUM, J., Dissenting 9
Committee Staff Analysis 3 accompanying the bill that amended
§ 501.207(3) notes that, under Freeman, “if the [predecessor] cor-
poration would not have had a claim against a third party,[] a re-
ceiver could not pursue a cause of action—regardless of whether a
creditor could pursue a claim against the third party—even if such
a suit might benefit the creditors.” Id. § II. Present Situation (citing
Freeman, 865 So. 2d at 548). So for instance, as the Staff Analysis
recognizes, under Freeman, “if the corporation in receivership, it-
self, could not bring the claims because of unclean hands, then the
receiver is in no better position to pursue such claims.” Id. at n.16.
Thus, the Florida legislature’s awareness of Freeman and its
effects indicates that the Florida legislature added the phrase “in the
name of and on behalf of the defendant enterprise, without regard
to any wrongful acts that were committed by the enterprise” to
§ 501.207(3) to correct the problem it perceived with Freeman’s
statement of Florida corporate law as it pertained to receivers of
alter-ego corporations. See id. § III. Effect of Proposed Changes.
Indeed, the amended language “provide[s] standing to the receiver
to pursue an action for the defendant corporation in receivership,
3 Of course, the Florida Senate Judiciary Committee Staff Analysis states that
it “does not reflect the intent or official position of the bill’s introducer or the
Florida Senate.” Fla. Sen. Judiciary Comm. Fla. Staff Analysis, S.B. 202 (Apr.
21, 2006) § VII. Related Issues. But the Staff Analysis simply makes historical
statements of fact about Freeman and its effects, so it is helpful to understand-
ing the context in which the Florida legislature amended § 501.207(3).
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 21 of 23
10 ROSENBAUM, J., Dissenting 21-10432
regardless of whether the defendant corporation had a part in the
wrongdoing.” Id.
III. Given the amendment to § 501.207(3), no impediments ex-
ist to the Receiver’s standing to bring claims against PNC
for aiding and abetting Marcus’s intentional torts.
Of course, my analysis above is only part of the story be-
cause the Florida legislature can’t provide Perlman with Article III
standing by amending a state statute, if Article III standing doesn’t
otherwise exist. Standing is, after all, a constitutional requirement.
See Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016) (holding that a
statutory violation, without more, did not give rise to Article III
standing). But here, the Florida legislature has merely altered the
state law under FDUTPA about the receiver’s position relative to
a former alter-ego corporation for which he now acts. While be-
fore the amendment, the receiver stood in the shoes of the former
alter-ego corporation for purposes of bringing claims against third-
parties that contributed to the former alter-ego corporation’s
wrongdoing, the amendment renders the former alter-ego corpo-
ration acting under the receiver now “cleansed” from the corpora-
tion’s prior existence. In short, the Florida legislature effectively
revised how it defines a corporation after a receiver takes over a
former alter-ego corporation.
Because the Florida legislature’s amendment to § 501.207(3)
addresses only legal standing, not Article III standing, as long as
Perlman satisfies Article III standing requirements, under
§ 501.207(3), he has standing to proceed against PNC. And here,
USCA11 Case: 21-10432 Date Filed: 06/27/2022 Page: 22 of 23
21-10432 ROSENBAUM, J., Dissenting 11
Perlman has sufficiently pled all three elements of constitutional
standing: “(1) an injury in fact (2) that is fairly traceable to the de-
fendant’s conduct and (3) that is redressable by a favorable deci-
sion.” Laufer v. Arpan, LLC, 29 F.4th 1268, 1272 (11th Cir. 2022).
First, Perlman has alleged a legally protected interest which
is “(a) concrete and particularized; and (b) actual or imminent, not
conjectural or hypothetical.” Id. (cleaned up). Perlman says he (on
behalf of the Receivership Entities) was injured financially when
PNC aided and abetted Marcus in withdrawing money from the
Receivership Entities’ accounts. That injury is “actual”—it already
happened—and “concrete” because Perlman alleges that he was
deprived of money, the quintessential concrete harm. See Muran-
sky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926 (11th Cir. 2020)
(en banc) (“Tangible harms are the most obvious and easiest to un-
derstand; physical injury or financial loss come to mind as exam-
ples.”). It is also “particularized” because it is Perlman’s money,
not that of the public at large. Spokeo, 578 U.S. at 339 (“For an
injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal
and individual way.’”).
Second, Perlman’s injury is directly traceable to PNC’s al-
leged conduct—opening accounts for Marcus even after he was
kicked out of other banks and even after PNC knew that Marcus
was operating a fraudulent debt relief business. And third, that in-
jury is redressable because if Perlman succeeds, the Receivership
Entities will recover the money that PNC and Marcus stole.
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12 ROSENBAUM, J., Dissenting 21-10432
Isaiah does not require a different conclusion. Isaiah applied
the general Florida common-law principle that the receiver stands
in the shoes of the corporation, as Freeman describes and which I
outlined above. Isaiah, 960 F.3d at 1302. But significantly, Isaiah
wasn’t a FDUTPA case—it was a Florida Uniform Fraudulent
Transfer Act (“FUFTA”) case. And unlike with FDUTPA, which
the Florida legislature amended to correct a problem it perceived
after Freeman issued, the Florida legislature made no similar
amendment to FUFTA. So the Isaiah panel had no basis to find
that Florida endowed the receiver with standing under the facts of
that case. But here, where the Florida legislature has broadened
the rights of a receiver to sue, Isaiah’s holding isn’t binding. Id.
IV
Because the amendment to § 501.207(3)’s text endows the
receiver of a former alter-ego corporation with standing to bring
claims against third parties that have allegedly contributed to the
former alter-ego corporation’s intentional torts, I would vacate the
district court’s dismissal of this case. I therefore respectfully dis-
sent. | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6778279/ | Summit App. No. 18618. On motion for leave to file delayed appeal. Motion granted.
Douglas, Resnick and F.E. Sweeney, JJ., dissent. | 01-03-2023 | 07-21-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902701/ | Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered June 23, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of six years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s credibility determinations, including its evaluation of the officer’s ability to observe a drug transaction.
To the extent the observing officer, who also testified as an expert witness, gave testimony in his expert capacity that improperly went to the ultimate issue of whether there was a drug transaction, the court provided a suitable remedy. The court’s careful instructions were sufficient to prevent that limited testimony from causing any prejudice.
We have considered defendant’s remaining challenges to the officer’s testimony, as well as defendant’s challenges to the prosecutor’s summation, and we find no basis for reversal. Concur—Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902702/ | In an action for a judgment declaring that Real Property Tax Law article 19 and § 305, and Real Property Law § 339-y are unconstitutional, the defendant Town of Clarkstown appeals from a judgment of the Supreme Court, Rockland County (Meehan, J.), entered July 3, 1986, which declared that Real Property Law § 339-y (1) (d) as applied by Local Laws 1985, No. 1 of the Town of Clarkstown is unconstitutional, and directed the Town of Clarkstown to assess condominium units in accordance with Real Property Law § 339-y (1) (b).
Ordered that the judgment is affirmed, with costs.
Some, but not all, of the towns comprising Rockland County have adopted Real Property Tax Law article 19. Condominium units located in towns in Rockland County which have not adopted Real Property Tax Law article 19 are assessed pursuant to Real Property Law § 339-y (1) (b), which places a protective ceiling on the aggregate assessment value of the condominium units, whereas condominium units located in towns in Rockland County which have adopted Real Property Tax Law article 19 are assessed pursuant to Real Property Law § 339-y (1) (d), which eliminates this protective ceiling.
The plaintiffs, who are owners of condominium units located in the Town of Clarkstown, which has adopted Real Property Tax Law article 19, are thus being assessed at a different value, and thus paying a different county tax, than similarly situated condominium owners in towns which have chosen not to adopt Real Property Tax Law article 19.
Under these facts, Real Property Tax Law article 19, Real Property Tax Law § 305 and Real Property Law § 339-y (1) (d) permit similarly situated properties to be taxed unequally, and there is no rational demographic basis for the difference. Accordingly, these statutes, adopted in part pursuant to Local Laws, 1985, No. 1 of the Town of Clarkstown, violate the plaintiffs’ equal protection rights and are void and unconstitutional as applied (see, Foss v City of Rochester, 65 NY2d 247). Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902703/ | In an action for specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Queens County (LeVine, J.), *810dated January 9, 1987, which denied his motion for summary judgment dismissing the complaint, and for judgment on his counterclaim to cancel the recording of the contract of sale.
Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint and for judgment on his counterclaim is granted. On August 13, 1984, the parties entered into a written contract wherein the plaintiff agreed to purchase the defendant’s property in Long Island City. The purchase price was $345,000, of which $50,000 was to be paid on the signing of the contract. The balance of $295,000 was to be paid by cash or certified check when title closed. This purchase was an all-cash transaction with no provision for a mortgage to be obtained by the plaintiff purchaser. The contract provided that the closing of title would take place on August 30, 1985, more than one year after the signing of the contract, and time was not made of the essence.
The facts with regard to the three adjournments of the date of title closing are material to this determination. By letter dated May 28, 1985, the plaintiff exercised an option in the contract and requested that the defendant "cause the removal of any tenants or occupants * * * of the Property at or prior to the Closing”. The defendant could not cause the removal of a tenant prior to the scheduled closing date and requested an adjournment from August 30, 1985 to October 1, 1985, which was agreed to by the plaintiff. By reason of an additional delay in obtaining the removal of the tenant, the defendant requested and was granted a second adjournment .to November 4, 1985. In October 1985, the plaintiff’s attorney, without stating a reason, orally requested and obtained from the defendant an adjournment until December 3, 1985.
In a letter dated November 12, 1985, the plaintiff requested another adjournment of the closing to May 15, 1986, a further delay of more than five months. The plaintiff offered no reason for the lengthy adjournment. However, the plaintiff offered to pay the defendant the additional sum of $25,000 on account of the purchase price. In response, by letter dated November 15, 1985, the defendant’s attorney declined to grant any further adjournment, in the following terms:
"We received your letter of November 12th. Our client refuses any adjournments.
"The building on the property is vacant and he expects to close title as previously agreed on December 3, 1985 at 10:00 *811a.m. at our office. We shall be prepared at that time to tender to you a deed properly executed and acceptable to your title company.
"Absent such title closing as aforementioned our client will take it that you are in default and will act accordingly”.
It is unclear when this letter of November 15, 1985 was received by the plaintiff’s attorney, since counsel for the plaintiff, in an affirmation, states in a vague manner that "a serious question exits [sic] as to when the same was received”. However, counsel for the plaintiff admits that he did receive the letter "at the earliest, several days after November 15 or, at the latest, several days after the purported remailing on November 22”. The "remailing” refers to a notation on the above-stated November 15th letter by the defendant’s counsel that the letter was remailed on November 22, 1985, "CM rrr” (apparently, certified mail return receipt requested). The plaintiff’s counsel further admitted that "the contents of the letter were discussed with Kaufman [the plaintiff’s president] as soon as the same was received, which was sometime in the latter part of November, 1985”. Thereafter, the plaintiff sought to adjourn the closing date for a lesser period of time, to January 31, 1986, but still approximately seven weeks after the closing date, again without giving any reason. The defendant again refused to adjourn the closing date. On December 3, 1985, the defendant appeared at his attorney’s office ready to deliver the deed, but the plaintiff did not appear or telephone and did not tender the purchase price.
On January 19, 1986, the plaintiff commenced this action for either specific performance of the contract to purchase the property or, in the alternative, the return of the down payment and incidental expenses. In his answer, the defendant, inter alia, interposed a counterclaim to cancel the recording of the contract of sale. The defendant then moved for summary judgment dismissing the complaint and for judgment on his counterclaim. The Supreme Court, Queens County, denied the defendant’s motion, stating that while the defendant’s November 15, 1985 letter did attempt to make time of the essence, triable issues of fact existed as to (1) whether the plaintiff received the notice in sufficient time to close, (2) the defendant’s good faith in making time of the essence, and (3) whether the plaintiff used due diligence to secure financing for the purchase of the real property. We find no such triable issues and, therefore, reverse.
Since the contract itself contained no "time of the essence” clause, in order to unilaterally convert a closing date, the *812defendant was required to give a clear, distinct and unequivocal notification which fixes a reasonable time within which the plaintiff may perform before default results (Bailen v Potter, 251 NY 224, 229; Mazzaferro v Kings Park Butcher Shop, 121 AD2d 434, 435-436; Perillo v De Martini, 54 AD2d 691, lv denied 40 NY2d 808; 62 NY Jur, Vendor & Purchaser, § 39, at 250, 251). We agree with the Supreme Court that the letter of November 15, 1985 was such a clear and unequivocal notification of the defendant’s intent to make time of the essence as to the December 3, 1985 closing date.
The only remaining question before us is to determine whether this notice gave the plaintiff a reasonable time to perform. A review of the precedents and of the facts of this case reveals that the plaintiff was afforded a reasonable time to close on December 3, 1985, and its failure to do so, in the face of the "essence” date, constituted a willful default on its part. In Michaels v Flapan (42 Misc 2d 812, affd 23 AD2d 967), the seller sent a notice on March 20 insisting on adherence to an April 3 closing date, which period was held to be a reasonable time within which plaintiff was to perform. In Perillo v De Martini (supra), the plaintiff’s counsel sent a letter to the defendant’s attorney on November 8 in which he stated unequivocally that if the title closing did not take place on November 29, "said contract will be cancelled and void.” We held that the letter made time of the essence, gave the defendant a reasonable time to perform, and gave the plaintiff the right to declare the defendant in default and to consider the contract terminated. In Shannon v Simon (128 AD2d 859, lv denied 70 NY2d 605), the seller sent a letter dated June 30 making a July 12 closing date of the essence, involving a period of 12 days. Thereafter, when the buyer sought additional time, the seller sent a written notice dated July 13 making a July 15 closing of the essence. In language particularly appropriate to this case, we affirmed the dismissal of the purchaser’s specific performance action, as follows: "It is well settled that a vendor of real property may convert an agreement in which time is not of the essence to one in which time is of the essence by giving clear and unequivocal notice to the vendee that a specified reasonable time for the completion of his obligation will be deemed of the essence (Levine v Sarbello, 112 AD2d 197, affd 67 NY2d 780). The correspondence of the defendants’ attorney constituted clear and unequivocal notification that time was to be of the essence. Moreover, it is readily apparent that the plaintiffs were given a reasonable time in which to fulfill their obligations under the contract. *813Consequently, the defendants were justified in declaring the plaintiffs to be in default, and in retaining the plaintiffs’ deposit as damages pursuant to the provisions of the contract (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Perillo v De Martini, 54 AD2d 691)” (Shannon v Simon, supra, at 860).
In this case, the plaintiff contends that there are triable issues as to when the plaintiff’s counsel received the letter in question, the reasonableness of the time interval and whether the parties acted in good faith and diligently. We find no such triable issues (see, Zev v Merman, 134 AD2d 555). The plaintiff’s president conceded that the plaintiff was ready, willing and able to close at all times but it was attempting to obtain "more favorable financing”, and, also, that the December 3, 1985 closing date was "inconvenient”. In his affidavit dated August 15, 1986, plaintiff’s president stated the following:
"Thus, as of the date originally scheduled for the closing and, for that matter, continuously thereafter, [the plaintiff] was, and still is, ready, willing and able to close title * * *
"11. At or about November 12, 1985 because of the repeated delays and adjournments in the closing, desirous of exercising [the plaintiff’s] rights pursuant to Paragraph (a) of the Rider to the contract, and requiring a longer delay to arrange more favorable financing for [the plaintiff], deponent instructed [the plaintiff’s] counsel to request a lengthy delay of the closing from counsel for [the defendant] * * *
"12. * * * The timing of that letter was such that, of course, deponent was incapable of arranging the favorable financing hereinabove referred to, and further was scheduled to be out of town at or about that time. Accordingly, counsel for [the plaintiff] advised counsel for [the defendant], at or shortly after receipt of the November 15 letter, that December 3, 1985 was inconvenient for the closing, and requested that same be adjourned some five weeks hence, again offering to increase the funds advanced on account of the purchase price” (emphasis supplied).
Since the contract of sale, entered into 16 months before the final closing date, provided for payment in cash, the "favorable financing” or "convenience” on the part of the plaintiff was not a reasonable basis to refuse to close on December 3, 1985. Moreover, the exact date that the plaintiff’s counsel received the letter of November 15 is irrelevant since the plaintiff concedes it was able to close on December 3, 1985, but chose to request an adjournment to obtain more "favorable financing” and because that date was not convenient to its *814president. For the same reasons, good faith on the part of the defendant and diligence on the part of the plaintiff do not serve to raise triable issues in light of the plaintiff’s conceded ability to close and its decision not to do so.
Accordingly, the letter of November 15 did effectively make time of the essence for the December 3, 1985 closing date, and, under the circumstances of this case, the plaintiff was given a reasonable time in which to fulfill its obligations under the contract. Consequently, the defendant was justified in declaring the plaintiff to be in default and in retaining the plaintiffs down payment as damages pursuant to the provisions of the contract (see, Maxton Bldrs. v Lo Galbo, 68 NY2d 373; supra; Shannon v Simon, supra; Perillo v De Martini, supra). Finally, the defendant is entitled to judgment on his counterclaim canceling the recording of the contract of sale. Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902705/ | Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered June 23, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of six years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s credibility determinations, including its evaluation of the officer’s ability to observe a drug transaction.
To the extent the observing officer, who also testified as an expert witness, gave testimony in his expert capacity that improperly went to the ultimate issue of whether there was a drug transaction, the court provided a suitable remedy. The court’s careful instructions were sufficient to prevent that limited testimony from causing any prejudice.
We have considered defendant’s remaining challenges to the officer’s testimony, as well as defendant’s challenges to the prosecutor’s summation, and we find no basis for reversal. Concur—Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1981535/ | 149 B.R. 712 (1993)
In re FULWOOD ENTERPRISES, INC., d/b/a Fulwood Farms, Ronnie D. Fulwood, and Glinda Fulwood, Debtors.
Bankruptcy Nos. 82-0818-8P1, 82-0923-8P1.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
January 7, 1993.
*713 Barbara Browning, Trustee.
Thomas Rydberg, Esq., Tampa, FL, for Trustee.
Jeffrey Warren, Tampa, FL, for Creditors' Committee United States Trustee.
ORDER DENYING REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSES AND ESTABLISHMENT OF PRIORITY FILED ON FEBRUARY 21, 1984 BY LEROY GONZALEZ, JR.
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 11 case commenced by a voluntary Petition of Relief filed by Fulwood Enterprises, Inc., d/b/a Fulwood Farms, Ronnie D. Fulwood and Glinda Fulwood (Debtors) on April 27, 1982. The matter under consideration is a Request for Payment of Administrative Expenses and Establishment of Priority filed on February 21, 1984, by LeRoy Gonzalez, Jr. (Gonzalez). Gonzalez seeks reimbursement as administrative expense for $60,000.00 he claims to have advanced to the corporate Debtor during the Chapter 11 proceeding to enable the Debtor to pay its payroll taxes. It is Gonzalezs' contention that the loan was made at the Debtor's request and was necessary for the Debtor to continue its business. An Objection was filed by the Trustee on March 15, 1984. The Trustee's objection to the payment is based on the following: (1) Gonzalez should not be able to collect on the debt because the loan was usurious; (2) Gonzalez failed to obtain Court approval of the loan and thus this Court should not grant nunc pro tunc approval of the loan; (3) The loan was made to individuals and not to Fulwood Enterprises, Inc.; and (4) Even if Fulwood Enterprises was indebted to Gonzalez, it should be credited $5,000.00 for a check cashed by Gonzalez.
The procedural background relating to the matter under consideration, as appears from the record, can be summarized as follows:
On August 11, 1983, this Court entered an Order which revoked the Debtor's previously-granted authorization to continue to operate its business and appointed Logan D. Browning as Trustee pursuant to § 1104 of the Bankruptcy Code. On September 7, 1983, this Court entered an Order and authorized the Trustee to continue to operate the Debtors' business. On September 12, 1983, the Official Creditors Committee filed a Plan of Reorganization and Disclosure Statement, which was superseded by a Joint Plan of Reorganization and Disclosure Statement filed by the Debtor on February 10, 1984. The February 10th Joint Plan, in turn, was superseded by the Debtor's Amended Joint Plan filed on May 14, 1984. On September 19, 1984, an Amended Disclosure Statement and Amended Plan was filed, and on October 18, 1984, this Court entered an Order confirming the Plan of Reorganization.
*714 Several years later, Logan D. Browning, the Trustee (Trustee), died, and this Court appointed his wife, Barbara Browning, as successor Trustee on August 2, 1991. Ms. Browning was directed to complete the consummation of the confirmed Chapter 11 Plan without further delay. After Ms. Browning completed the administration of the Plan and resolved all adversary matters necessary for closing the case, it became apparent that Gonzalezs' Request for Payment of Administrative Expenses, filed more than eight years ago, had never been acted upon. It is without dispute that no order was ever entered on the Request which either granted or denied the payment of administrative expenses to Gonzalez.
In order to complete the administration of the estate, this Court scheduled a hearing for September 23, 1992. On September 23, 1992, the Trustee filed a Motion for Continuance, which this Court granted, rescheduling the hearing for November 25, 1992.
Gonzalez contends that in April, 1983, after the commencement of the Chapter 11 case, he loaned Ronnie Fulwood (Fulwood), a principal of the corporate Debtor, a total dollar amount of $60,000.00, over two installments, at Fulwood's request. The first installment, in the amount of $25,000.00, was paid, according to Gonzalez, on May 1, 1983, and the second installment, in the amount of $35,000.00 on June 1, 1983. These loans were made to enable the Debtor to pay accrued payroll taxes which remained unpaid post-petition. Gonzalez admits that when he made these loans to the Debtor, he knew of the pendency of the Chapter 11 case. Gonzalez contends, however, that he was not aware of the fact that a Debtor must obtain permission from the Court to borrow funds. He further contends that since the monies were paid on the Debtor's payroll tax obligation, a properly charged cost of administration, he is entitled to step into the shoes of the Government and enjoy the same priority status as the Government could have had pursuant to § 503(b)(1)(B)(i).
Based on the foregoing, Gonzalez contends that he is entitled to have these alleged loans to this corporate Debtor recognized by virtue of § 503(b)(1)(B) of the Bankruptcy Code, and granted first priority pursuant to § 507(a)(1) of the Bankruptcy Code. The evidence supporting this request reveals that on May 1, 1983, Ronnie Fulwood and Glinda Fulwood, as individuals, signed a promissory note payable to Gonzalez in the face amount of $25,000.00. (Claimant's Exh. # 1). This transaction purported to be evidenced by a copy of a check signed by Glinda Fulwood and written on a corporate account in the amount of $35,000.00 on June 31, 1983, and a second check also signed by Glinda Fulwood and written on the same corporate account in the amount of $30,000.00 on June 6, 1992. Both checks were payable to Leroy Gonzalez. (Claimant's Exh. # 2). The promissory note signed by the Fulwoods agreed to repay, within thirty days, the total sum of $25,000.00 with 20% interest. (Claimant's Exh. # 1). According to Gonzalezs' corporate income tax form filed in 1983, he wrote off the $60,000.00 which he allegedly loaned to the corporation as a Bad Debt deduction and claimed it as short-term Capital Loss. (Claimant's Exh. # 3). According to the testimony of the C.P.A. employed by the Trustee, the corporate Debtor made a payment of $5,000.00 to Gonzalez on July 11, 1983. This payment was drawn on the corporate account and made payable to Leroy Gonzalez. (Debtor's Exh. # 1). This $5,000.00 check was the only cancelled check available when the check register indicated the following: On June 6, 1983, a check was drawn on the corporate account in the amount of $30,000.00, payable to Leroy Gonzalez, with the descriptive legend "Repayment of Loan $25,000.00; Interest $5,000.00." On June 31, 1983, another check was drawn on the corporate account in the amount of $35,000.00, also payable to Leroy Gonzalez, with the descriptive legend "Loan Repayment $30,000.00; Interest $5,000.00." (Debtor's Exhibit # 2). As noted earlier, the original checks are not available. Moreover, it appears that Gonzalez loaned additional monies to Ronnie Fulwood, the principal of the Debtor corporation. Although Gonzalez insists that his loans were made to the corporate *715 Debtor, he repeatedly stated that he loaned the monies to "him" in order to help him out of his tax problem with the Internal Revenue Service. As noted earlier, the Debtor neither sought leave from this Court to borrow these funds, nor was an Order entered authorizing him to borrow these funds. Since February 21, 1984, when he filed this Request for Payment, Gonzalez has taken no steps to pursue this matter seriously or to demand repayment of these so-called loans which he now claims should be properly charged as costs of administration.
In opposing this Request, it is the Trustee's position that: first, these so-called loans were not authorized; and second, if they were authorized, they were made to the individuals, Ronnie and Glinda Fulwood, and, therefore, have been repaid by the Debtors.
It needs no elaborate discussion that the burden of proof is on the party who is claiming the administrative expense. See, In re Highland Group, Inc., 136 B.R. 475, 481 (Bankr.N.D.Ohio 1992); citing, Woods v. City National Bank & Trust Co., 312 U.S. 262, 268, 61 S. Ct. 493, 497, 85 L. Ed. 820 (1941). The presumptive validity accorded to a filed or a properly-scheduled claim by F.R.B.P. 3003 is not applicable to a request for payment of administrative expenses. Cf. F.R.B.P. 3003; 11 U.S.C. § 503. Thus, the burden is on the moving party to establish first, that there is a valid claim, and second, whether or not that claim should be charged as a cost of administration under § 503 of the Bankruptcy Code. It is equally beyond serious dispute that: (1) the authorization granted to a Chapter 11 Debtor under § 1108 of the Bankruptcy Code to continue to operate a business does not include the authority to borrow and incur post-petition debts in the ordinary course of business, except only after notice of hearing; and (2) general unsecured post-petition loans made to the debtor cannot be recognized as costs of administration unless they were authorized by the corporation pursuant to § 364(b) of the Bankruptcy Code. See, 11 U.S.C. § 364.
Considering this record, and in light of the foregoing, this Court is satisfied that: (1) these loans were never authorized, even if they were made; (2) there is serious doubt, and the evidence is in equal balance, as to whether these loans were made to the Debtor Corporation or to the individuals, Ronnie Fulwood and Glinda Fulwood; and (3) it is unclear and the evidence does not support the movant's proposition that these debts, if in fact incurred by the Debtor, were not repaid. There is sufficient evidence in this record to permit the inference that these loans were in fact repaid. Yet, even assuming that the loans made to the Debtor corporation were not repaid, the delay in pursuing this request for payment by Gonzalez at the very last hour of this ten year old Chapter 11 case certainly, while not barred by any rules, would be barred by laches and therefore, cannot be recognized.
Based on the foregoing, it is
ORDERED, ADJUDGED AND DECREED that the Request for Payment of Administrative Expenses and Establishment of Priority filed on February 21, 1984, by LeRoy Gonzalez, Jr. is hereby denied.
DONE AND ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902706/ | In a proceeding pursuant to CPLR article 78 to compel the respondents constituting the Board of Water Commissioners of the Bethpage Water District to provide water distribution service to the petitioner’s property, the appeal is from a judgment of the Supreme Court, Nassau County (Balletta, J.), dated September 3, 1987, which directed the respondent to provide the petitioner with water distribution service.
Ordered that the judgment is reversed, on the law, with costs, and the matter remitted to the Supreme Court, Nassau County, for a hearing and new determination in accordance herewith.
In April 1986 the petitioner, whose future headquarters will be located within the Bethpage Water District, sought the appellants’ permission to contact the Hicksville Water District (hereinafter Hicksville) to ascertain whether Hicksville would be willing to supply the petitioner’s future headquarters with water distribution service. The appellants by letter dated July 25, 1986, informed the petitioner that the Bethpage Water District would prefer to supply the new building with water via a 12-inch main extended from Nottingham Gate and Stewart Avenue along the Grumman property line over to South Oyster Bay Road and along South Oyster Bay Road to the building. In light of considerations relating to costs and convenience, however, the appellants expressed a willingness to allow the petitioner to seek water distribution service from Hicksville on certain conditions.
After receiving this letter, the petitioner entered into a contract whereby it relinquished its leasehold interest in its *817present headquarters in exchange for, inter alia, a fee interest in the land on which its new headquarters would be situated. Construction was commenced whereupon the petitioner contacted Hicksville and requested that it supply water distribution service to the new building. Hicksville delayed the petitioner’s application in consideration of pumpage limitations which had been proposed by the New York State Department of Environmental Conservation.
By letter dated October 22, 1986, the petitioner sought from the appellants confirmation of the representation made in their July 25, 1986 letter to the effect that they would supply water distribution service to the new headquarters in the event that Hicksville refused to do so. By letter dated December 9, 1986, the appellants informed the petitioner that its request for water availability had been denied. The appellants stated that "no additional development on the Grumman parcel can receive water from the Bethpage Water District without some sort of assistance being given by the developer to the District to increase the district’s supply capacity”. The letter further stated that "the pumpage caps, as imposed upon the Bethpage Water District by the Department of Environmental Conservation, are only part of the concern of the commissioners of [the] district that have caused the denial of your request for water availability. More importantly, in order to properly serve the residents and consumers of the Bethpage Water District a new well site facility must be created. Any new construction of any development which will substantially increase the district’s capacity requirements will be required to contribute to this expansion of facilities”. Ultimately, the petitioner refused to cooperate in this respect and has been denied water distribution service.
Neither the impact of the Department of Environmental Conservation caps nor the cost and extent of capital expenditures which would be necessary if the appellants were compelled to provide water service to the petitioner’s facility has been fully developed in the record. Accordingly, the court erred in failing to conduct a hearing inasmuch as there were issues of fact presented in the papers submitted. At the hearing to be conducted upon remittitur, the court should also address the issue of the applicability of Town Law § 199.
In view of our determination herein, we decline to address the remaining issues raised by the parties. Mangano, J. P., Thompson, Bracken and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902707/ | Appeal from order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about December 22, 2011, which, inter alia, resettled an order, same court and Justice, entered on or about June 30, 2011, inter alia, declaring void ab initio contracts of sale for the properties at 51 and 53 West 19th Street between defendant Daniel R. Broche, as Ancillary Executor of the Estate of Agnes M. Broche, and defendants Property 51 LLC and Property 215 LLC, unanimously dismissed, without costs, as untimely.
Defendants Property 51 LLC and Property 215 LLC are aggrieved not by the December 22, 2011 order from which they purport to appeal but from the earlier June 30, 2011 order. Contrary to their contention, there is no material difference between the two. Thus, defendants’ time to appeal must be measured from the June 30 order (see Kitchen v Port Auth. of N.Y. & N.J., 221 AD2d 195 [1st Dept 1995]). Defendants failed to include the notice of entry and affidavit of service of the June order in the record, but they do not dispute that their deadline to file a notice of appeal was August 29, 2011, which they exceeded by almost five months. Concur—Tom, J.P, Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902708/ | In a negligence action to recover damages for personal injuries, etc., the defendants County of Westchester, Westchester Street Transportation Company, and Edward Connolly appeal from an order of the Supreme Court, Westchester County (Ruskin, J.), dated August 10, 1987, which denied their motion for summary judgment dismissing the complaint insofar as it is asserted against them and all cross claims against them.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint insofar as it is asserted against the appellants and any cross claims against the appellants are dismissed.
The infant plaintiff, 15 years old at the time of the accident, suffers a loss of memory as one of its results. The plaintiff’s loss of memory is by itself insufficient to defeat the appellants’ motion for summary judgment (cf., Smith v Stark, 67 NY2d 693). Although the appellants’ public bus may have stood at an angle in the bus stop because of an illegally parked car, the record before us establishes that the infant plaintiff was struck by the defendants Polzers’ vehicle after she safely alighted from the appellants’ bus onto the sidewalk and then proceeded into a busy intersection. The appellants’ duty to the infant plaintiff as a passenger terminated when she alighted safely on the curb (see, e.g., Mooney v Niagara Frontier Tr. Metro Sys., 125 AD2d 997; Rodriguez v Manhattan & Bronx Surface Tr. Operating Auth., 117 AD2d 541, lv denied 68 NY2d 602; Ortola v Bouvier, 110 AD2d 1077). There is no showing that the bus driver committed any acts or failed to perform any duty owed to the infant plaintiff which was a substantial factor in bringing about the accident. Therefore, the Supreme Court should have granted the appellants’ motion. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902709/ | In a proceeding for an order of retention pursuant to Mental Hygiene Law § 9.27, the appeal is from an order of the Supreme Court, Suffolk County (Willen, J.), dated December 11, 1987, which, upon rehearing and renewal, continued the appellant’s retention pursuant to an order of the same court (Hurley, J.) dated October 16, 1987.
Ordered, that the order dated December 11, 1987 is reversed, on the law and the facts, without costs or disbursements, and the respondent Pilgrim Psychiatric Center is directed to release the appellant.
*819On July 14, 1987, the appellant was admitted to the Pilgrim Psychiatric Center pursuant to Mental Hygiene Law § 9.27. The hospital sought and obtained an order allowing it to retain the appellant for a six-month period expiring April 16, 1988. Pursuant to Mental Hygiene Law § 9.33, the appellant requested a rehearing, which was heard by a different Judge. During the hearing, over the appellant’s objection, the court admitted into evidence the appellant’s complete hospital records which contained the notes of numerous members of the hospital’s staff. The hospital’s sole witness, Dr. Alain Kruh, one of the appellant’s treating psychiatrists at the hospital, used the record and its comments as the basis for his opinions that the appellant was mentally ill and that he poses a substantial risk of danger to himself or to others (see, e.g., People ex rel. Adams v Acrish, 133 AD2d 873). Following the hearing, the court upheld the initial retention order and continued the appellant’s retention. We conclude that the evidence upon which the doctor’s opinions and the court’s conclusions were based was insufficient, and, therefore, reverse.
In order to obtain or continue an order of commitment, the hospital must establish by clear and convincing evidence, not only that the patient is in need of further care and treatment, but that the patient is mentally ill and poses a substantial threat of physical harm to himself or others (see, People ex rel. Adams v Acrish, supra; Matter of Harry M., 96 AD2d 201, 206). " '[I]t is possible for many non-violent persons who suffer from a mental disease * * * to live outside of an institution, and when they prefer to do so, regardless of the wisdom of their decision or the strength of their reasoning powers, they have their constitutional right to follow their own desires’ ” (Matter of Harry M., supra, at 207, quoting Kendall v True, 391 F Supp 413, 418). The record was nearly devoid of evidence that the appellant is a danger to himself or to others. The little evidence that could support the necessary conclusions was plainly insufficient.
Dr. Kruh stated that he believed that appellant needed hospitalization because he lacked insight and judgment. He said the appellant lacked insight because of his denials that he was mentally ill, and judgment because he wanted to return to the community without treatment and did not wish to take medication. Dr. Kruh initially made conclusory assertions that the appellant would pose a danger to himself or others. When pressed by the court for the basis of this opinion, he relied largely on a motorcycle accident in which the *820appellant had been involved five years earlier and a "reported history of drug abuse”. Concerning the accident, he referred to notes in the hospital records which stated that after the accident the appellant had remarked that someone had been pursuing him and that the accident occurred while he was fleeing. On the other hand, the appellant testified that the accident had been due to another vehicle’s violating a stop sign and entering the road directly in the path of his motorcycle. The appellant also indicated that he was going to "drop [a passenger] off” somewhere—a purpose inconsistent with the claim that he was fleeing from some imagined pursuers at the time of the accident. With respect to the allegation of drug abuse, there was no indication that the appellant had any present problem with drugs.
The other incident upon which the hospital relied heavily was the one which precipitated his admission in July 1987, i.e., the allegation that the appellant barricaded himself inside the house in which he and his grandmother resided, disconnected the telephones and shut off the circuit breakers, and police had to be summoned to take him to a hospital. The appellant again gave a version which shed quite a different light on this incident. As just one example of the difference in perspective, the appellant said he simply refused to respond to the requests of his grandmother’s health care worker to enter the house, but said he believed she had her own key and usually let herself in.
According to the hospital records, the appellant was sometimes withdrawn and hostile, but never physically aggressive. Contrary to Dr. Kruh’s testimony, those records indicate that, except for his refusal to take medication, the appellant was generally cooperative. Other than the matters mentioned above and a few other passing comments in the record about events remote in time or of marginal significance, there was no sign that the appellant posed any danger to himself or others. The evidence in the record falls far short of the showing required to justify involuntary commitment (see, Matter of Harry M., supra, at 206-207; cf., People ex rel. Adams v Acrish, supra; Matter of Lyle G. v Harlem Val. Psychiatric Center, 134 AD2d 470). Accordingly, the order directing the appellant’s continued commitment should be reversed, and the respondent is directed to release him. Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826248/ | *558ORDER
MOODY R. TIDWELL, III, Judge:
The court, sua sponte, after a review of plaintiff’s complaint, dismisses the action based on the doctrine of res judicata.
Broadly stated, the concept of res judica-ta encompasses both claim preclusion (res judicata) and issue preclusion (collateral es-toppel). Dodrill v. Ludt, 764 F.2d 442, 443 (6th Cir.1985) (per curiam). It is well settled that the application of res judicata principles is warranted in repetitious suits involving the same cause of action. See Reidt v. United States, 13 Cl.Ct. 741, 744 (1987); Prizer v. United States, 11 Cl.Ct. 184, 186-87 (1986) (citing, Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948)). In such cases, the doctrine permits a court to dismiss an action if it finds that a court of competent jurisdiction has previously entered a final judgment on the merits of a cause of action. Id. As a result of the prior adjudication, the parties to the prior suit are forever bound in a subsequent suit as to every matter which was offered and received, or any matter which could have been offered and received. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); Reidt, 13 Cl.Ct. at 744; Prizer, 11 Cl.Ct. at 187.
Collateral estoppel (i.e., issue preclusion), like res judicata, also has the dual purpose of protecting litigants from the vexatious task of relitigating an identical issue with the same party of its privy, and of promoting judicial economy by preventing needless litigation. Parklane Hosiery, 439 U.S. at 326, 99 S.Ct. at 649. As interpreted by the United States Supreme Court, the doctrine of collateral estoppel provides that once an issue is actually and necessarily determined and resolved by a court of competent jurisdiction, that determination and a resolution is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979). Moreover, the principle “must be confined to situations where the matter raised in the second suit is identical to the first proceeding and where the controlling facts ... remain unchanged.” Sunnen, 333 U.S. at 599-600, 68 S.Ct. at 720.
Plaintiff’s complaint, No. 573-88C, contains the same parties, facts and issues, as the case of LaChance v. United States, 15 Cl.Ct. 127 (1988). Indeed, plaintiff’s present complaint mirrors the complaint filed in the prior action with the exception of a claim based on a fifth amendment taking without just compensation. That issue was summarily ruled upon in the prior action, as the court noted:
The Claims Court would have jurisdiction over the issues at bar if plaintiff had grounded its claim upon either an implied in fact contract or a fifth amendment taking without just compensation.... Even if plaintiff had asserted a claim based on violations over which this court would have had jurisdiction, sections 1316.77-78 of Title 21 of the Code of Federal Regulations, under which plaintiff’s money was forfeited, granted the judiciary jurisdiction only if plaintiff filed a claim and a bond within twenty days of the seizure. Plaintiff failed to comply with this requirement. This court would, therefore, lack jurisdiction to address possible claims at this time. Furthermore, in reviewing a seizure and forfeiture case taken through administrative procedures, it would be improper for a court to reach the merits of the administrative decision. United States v. One 1970 Buick Riviera, 463 F.2d 1168, 1170 (5th Cir.), cert. denied sub nom. National Am. Bank v. United States, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972). Accordingly, this court must refrain from so reaching the merits now.
LaChance, 15 Cl.Ct. at 130.
As the facts and issues in this action have been reviewed and decided upon in a prior action, and the same parties involved, principles of res judicata apply. The Clerk *559is directed to dismiss the complaint with prejudice.
IT IS SO ORDERED. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902710/ | In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondents, dated November 17, 1986, issuing a wetlands permit to the intervenor, the petitioners appeal from a judgment of the Supreme Court, Westchester County, (Nicolai, J.), dated June 15, 1987, which granted the intervenor’s motion to dismiss the petition.
Ordered that the judgment is affirmed, with costs to the intervenor.
The petitioners contend that the North Salem Planning Board (hereinafter the Board) failed to comply with the substantive and procedural requirements of the State Environmental Quality Review Act (ECL art 8 [SEQRA]), in issuing a wetlands permit to the intervenor. The record, however, reveals that the Board "identified the relevant areas of environmental concern, took a 'hard look’ at them, and made a 'reasoned elaboration’ of the basis for [its] determination” (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363-364; quoting from H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232; Aldrich v Pattison, 107 AD2d 258, 261). In this regard, the Board’s conditional negative declaration was rendered after thoroughly investigating all of the environmental problems with the proposed activity and the wetlands permit was granted as a proper exercise of discretion (see, Chinese Staff & Workers Assn. v City of New York, supra, at 364; Matter of Cohalan v Carey, 88 AD2d 77, 79, lv dismissed 57 NY2d 672). Thus, the Supreme Court correctly dismissed the instant petition.
We have examined the petitioner’s remaining contentions and find them to be without merit. Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902712/ | Appeal from order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about December 22, 2011, which, inter alia, resettled an order, same court and Justice, entered on or about June 30, 2011, inter alia, declaring void ab initio contracts of sale for the properties at 51 and 53 West 19th Street between defendant Daniel R. Broche, as Ancillary Executor of the Estate of Agnes M. Broche, and defendants Property 51 LLC and Property 215 LLC, unanimously dismissed, without costs, as untimely.
Defendants Property 51 LLC and Property 215 LLC are aggrieved not by the December 22, 2011 order from which they purport to appeal but from the earlier June 30, 2011 order. Contrary to their contention, there is no material difference between the two. Thus, defendants’ time to appeal must be measured from the June 30 order (see Kitchen v Port Auth. of N.Y. & N.J., 221 AD2d 195 [1st Dept 1995]). Defendants failed to include the notice of entry and affidavit of service of the June order in the record, but they do not dispute that their deadline to file a notice of appeal was August 29, 2011, which they exceeded by almost five months. Concur—Tom, J.P, Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902713/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthews, J.), rendered January 3, 1986, convicting him of criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was for the suppression of physical evidence.
Ordered that the judgment is affirmed.
On December 10, 1984, at approximately 6:15 p.m., a police officer observed an automobile which did not have registration stickers stopped at a red light. The police officer asked the defendant for his license and registration. The license had been altered and the registration had not been validated. Using a flashlight, the officer proceeded to compare the defendant’s registration to the vehicle identification number on the windshield. As he did so, the officer noticed what appeared to be a gun sticking out from beneath the driver’s seat. The defendant refused to give the officer the keys to the car and threw them to a friend standing at a distance from the officer. The officer retrieved the keys, placed the defendant under arrest, and then removed a pistol from beneath the car seat.
The defendant contends that the police officer’s testimony regarding the discovery of the gun is incredible. There is no basis on this record for disturbing the determination of the court denying suppression of the gun (see, People v Armstead, 98 AD2d 726). The warrantless search of the passenger compartment of the car was authorized as a search incident to an arrest and under the plain view exception to the warrant requirement (see, New York v Belton, 453 US 454, reh denied 453 US 950; Texas v Brown, 60 US 730).
Upon the exercise of our factual review power, we are *823satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
In addition, we find that the court did not abuse its discretion in denying counsel’s motion to be relieved (see, People v Tineo, 64 NY2d 531, 536). The defendant voluntarily retained counsel immediately after his arrest. On the first day of trial, counsel requested to be relieved because the defendant had decided, contrary to counsel’s advice, to waive a jury trial and counsel was reluctant to proceed with a bench trial. The court made inquiry of the defendant who indicated that he did not want new counsel substituted and would proceed to trial with his retained counsel. The record contains no evidence suggesting judicial interference with the defendant’s decision to proceed with his retained counsel (see, People v Arroyave, 49 NY2d 264, 270; Matter of Abrams [Anonymous], 62 NY2d 183, 200).
Furthermore, we find that the defendant was provided with meaningful and effective assistance by counsel (see, People v Benn, 68 NY2d 941, 942; People v Baldi, 54 NY2d 137). The record reveals that defense counsel was eminently familiar with both the law and facts relevant to the defense, in addition to being well versed in the principles of criminal law and procedure. The defense counsel made pretrial motions, requested a suppression hearing and a Sandoval hearing, effectively cross-examined prosecution witnesses, raised numerous objections, delivered cogent opening and closing statements, and made appropriate posttrial motions. In addition, counsel made a logically compelling statement on behalf of the defendant at sentencing.
We have considered the defendant’s remaining contentions, including his claims of prosecutorial misconduct, and find them to be without merit. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902714/ | Judgments, Supreme Court, New York County (Michael R. Sonberg, J.), rendered on or about February 22, 2010, unanimously affirmed.
Application by appellant’s counsel to withdraw as counsel is granted (see Anders v California, 386 US 738 [1967]; People v Saunders, 52 AD2d 833 [1976]). We have reviewed this record and agree with appellant’s assigned counsel that there are no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within 30 days after service of a copy of this order.
Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice. Concur—Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129362/ | Barnard, P. J.:
By section 886, .Code of Civil Procedure, when a person to be examined before trial, resides in the State, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person. The plaintiff resides in the city and county of New York, and has no office in Kings county. The order requires him to appear in Kings county to be examined. The fact that the place of trial -of the action is designated to be Kings county does not enlarge the power to require a party tq go out of the county of his residence: The section makes no exception, in favor of counties in which the place of trial is placed. An examination before trial rests upon article 1, of title 3 of the Code, and that article restricts the place of examination in all cases to a county in which a person resides.
The order should be reversed, with costs and disbursements.
Dykman and Pratt, JJ., concurred.
Order reversed, with costs and disbursements. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823521/ | Method of and means for producing dense articles from molten materials. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902716/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered May 5, 1983, convicting him of burglary in the third degree, criminal possession of burglars’ tools, and attempted petit larceny, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On appeal the defendant contends that the circumstantial evidence presented at trial was insufficient to sustain his conviction. The defendant was observed by the police outside of a school building just after midnight prying at a window. A metal security screen had been pulled back and the window was open about 16 inches. The defendant had a crowbar in his hands which was extended about eight inches into the open window. On the other side of the window were cartons of frozen food which were too large to fit through the window. Testimony at trial revealed that the cartons had been stored inside a freezer unit adjacent to the open window before the incident.
When a conviction is based solely on circumstantial evidence, in order for guilt to be proven beyond a reasonable doubt, the hypothesis of guilt should flow naturally from the facts proved and be consistent with them, and the facts proved must exclude to a moral certainty every reasonable hypothesis of innocence (People v Giuliano, 65 NY2d 766, 767-768; People v DiBlasi, 130 AD2d 679). Based on the evidence presented, we conclude that the jury was entitled to find that the facts excluded every reasonable hypothesis of innocence.
The defendant’s objections to the trial court’s charge on circumstantial evidence were not preserved as a matter of law (CPL 470.05 [2]). However, even if we were to reach the issue in the interests of justice, it is apparent that the charge taken *826as a whole conveyed the correct legal principles to the jury (People v Blackshear, 112 AD2d 1044, 1045, lv denied 66 NY2d 917; People v Fisher, 112 AD2d 378)
We have examined the defendant’s remaining contention and find it to be without merit. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902717/ | Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered June 10, 1985, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On the evening of August 16, 1984, the defendant and the deceased, Clarence Moore, became embroiled in an argument on a public street in Riverhead, New York. During the argument, Moore was stabbed in the abdomen and, as a result, he died the next day. The defendant was charged with two counts of murder in the second degree (Penal Law § 125.25 [1], [2]).
At trial, the prosecution presented the testimony of three eyewitnesses that on the evening in question, the defendant accosted the deceased and punched him in the face, thereby knocking him to the ground. One of the witnesses then saw the defendant stab the deceased in the abdomen with a steak knife. This eyewitness testified that the defendant later told him that he and his wife and children "were next” if he spoke to the police. Later, the defendant told this witness either to remain silent or tell the police it was an accident. Although the other two eyewitnesses did not see the knife, they observed the defendant punch the deceased in the stomach. All the eyewitnesses knew both the defendant and the deceased.
The People’s evidence established that the deceased, who was smaller than the defendant, was unarmed and, indeed, made no attempt to defend himself. Immediately after the stabbing, the manager of a nearby restaurant observed the defendant holding and wiping the knife. The defendant told this witness that he had just "stabbed somebody”. This witness also observed the defendant throw the knife on the ground near the deceased and stamp on it. The knife was recovered by the police. In addition, the defendant’s cousin testified that when he visited the defendant in jail, the defendant admitted to stabbing the deceased. The cousin also testified that he had often seen the defendant in possession of the knife recovered from the scene of the homicide.
The defendant testified in his own behalf. He admitted to *827arguing with and striking the deceased. He stated that he grabbed the deceased when he saw the deceased put his hand under his shirt as if to reach for a weapon. The deceased grunted and bent over, and then the defendant saw the knife in the deceased’s stomach.
The trial court instructed the jury on murder in the second degree (intentional murder) (Penal Law § 125.25 [1]), and the lesser included offenses of manslaughter in the first degree (intent to cause serious physical injury) (Penal Law § 125.20 [1]) and manslaughter in the second degree (recklessly causes death) (Penal Law § 125.15 [1]). The jury was instructed to consider the lesser offenses successively only upon finding the defendant not guilty of the greater offense. The defendant contends that the trial court’s refusal to submit criminally negligent homicide for the jury’s consideration, as requested by defense counsel, is reversible error. We disagree.
First, the defendant’s challenge to the sufficiency of the charge is foreclosed by the fact that the lesser offense of manslaughter in the second degree was available to the jury, yet they chose to convict the defendant of manslaughter in the first degree (see, People v Boettcher, 69 NY2d 174, 180; People v Richette, 33 NY2d 42, 44-45).
Moreover, the trial court’s conclusion that there was no reasonable view of the evidence which would support a finding that the defendant was guilty of the lésser offense but not guilty of the greater offense was proper (see, CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63). Although criminally negligent homicide is a lesser included offense of murder and manslaughter (People v Green, 56 NY2d 427, 433, rearg denied 57 NY2d 775), an examination of the record reveals no reasonable view of the evidence which would support a finding that the defendant negligently stabbed the deceased. According to the defendant’s version of the event, the deceased was accidentally stabbed with his own knife when the defendant, unaware of the presence of the knife, grabbed him. By contrast, the People’s evidence proved an intentional stabbing. Indeed, one of the People’s witnesses testified that immediately after the stabbing, the defendant said, ”1 told you I’m going to kill you”. Thus, the jury was presented with conflicting versions of the incident indicating that the defendant was either guilty of an intentional stabbing or not guilty at all (see, People v Mills, 105 AD2d 759, 760, lv denied 64 NY2d 891; see also, People v Aster, 124 AD2d 807, lv denied 69 NY2d 947, 70 NY2d 642; People v Bova, 122 AD2d 798, lv denied 68 NY2d 810). Viewing the evidence in the light most favorable to the defendant, *828there is no reasonable view of the facts which would support a finding that he acted with criminal negligence in causing the death of Clarence Moore (see, People v Adams, 72 AD2d 156, affd 53 NY2d 1, cert denied 454 US 854).
We also reject the defendant’s claim that he was deprived of a fair trial by a police officer’s testimony that the deceased identified the defendant as his attacker. The Trial Judge immediately ordered that the testimony be stricken from the record and began to give a curative instruction. The court’s instruction was cut short when defense counsel interrupted with a mistrial motion. After the denial of the mistrial motion, there was no request for further curative instructions. Thus, the defendant’s claim of error is unpreserved (CPL 470.05 [2]; People v Santiago, 52 NY2d 865; People v Danza, 127 AD2d 781, lv denied 69 NY2d 879). Moreover, in light of the overwhelming evidence of the defendant’s guilt, any insufficiency in the curative instructions was harmless (see, People v Crimmins, 36 NY2d 230, 242).
We have considered the defendant’s remaining contentions and find them to be either without merit or unpreserved for appellate review. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4152845/ | Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 14, 2017
The Court of Appeals hereby passes the following order:
A16A1794. SWEET CITY LANDFILL, LLC et al. v. ELBERT COUNTY et al.
Appellants Sweet City Landfill, LLC, J. B. Wright, and Jack Stovall, Jr.
(collectively, “Sweet City”) appeal the trial court’s order granting the motion to
dismiss filed by Appellees Elbert County, The Board of Commissioners of Elbert
County, and the City Manager of Elbert County (collectively, “Elbert County”).1 In
the notice of appeal, Sweet City states that it is filing this direct appeal pursuant to
OCGA § 5-6-34 (a) (l), which provides for a direct appeal of all final judgments,
except as provided in OCGA § 5-6-35. Pursuant to OCGA § 5-6-35 (a) (1), appeals
from decisions of the superior courts reviewing decisions of state and local
administrative agencies must be made by filing an application for discretionary
appeal. Elbert County argues that the appeal should be dismissed because Sweet City
was required to follow the discretionary appeals process.2
Sweet City initially filed a “Verified Complaint for Declaratory Judgment, and
Injunctive Relief” against Elbert County, seeking declaratory judgments that its waste
disposal facility was not required to obtain a special use permit, that Elbert County’s
Solid Waste Disposal Ordinance was unconstitutional on various grounds, and that
Sweet City had a vested right to develop and operate a waste disposal facility,
1
This appeal was originally filed in the Supreme Court of Georgia and
subsequently transferred to this Court based on the Supreme Court’s determination
that this case does not fall within its jurisdiction over constitutional questions or
“equity” cases.
2
We note that Sweet City has not responded to this argument.
notwithstanding the Elbert County zoning ordinance and map. Sweet City also sought
a mandatory injunction to require Elbert County to allow Sweet City to develop and
operate the waste disposal facility. Elbert County moved to dismiss the complaint,
and Sweet City moved for summary judgment. The trial court subsequently issued an
order:
granting summary judgment to Sweet City on the grounds that the
County’s Solid Waste Ordinance violated the dormant Commerce
Clause of the United States Constitution, and that the July 9, 2012 Board
action deprived Sweet City of equal protection under both the United
States and Georgia Constitutions; declaring that Sweet City has a vested
right to have the County issue “a letter of zoning and development
compliance and consistency with the County’s solid Waste Management
Plan”; declaring that Sweet City has a vested right to develop the
property as a landfill free of any zoning and land use restrictions; and,
granting a temporary injunction against the County from enacting or
enforcing ordinances so as to interfere with Sweet City’s development.
The superior court also denied the County’s motion to dismiss, rejecting
the County’s argument that Sweet City had to exhaust its administrative
remedies prior to filing suit.
Elbert County v. Sweet City Landfill, LLC, 297 Ga. 429, 431 (774 SE2d 658) (2015).
The Supreme Court of Georgia granted Elbert County’s application for
discretionary appeal.3 The Supreme Court held that the trial court did not err in ruling
that the Elbert County Board of Commissioners took no action on Sweet City’s
application for a special use permit, but did err in rejecting Elbert County’s argument
that the trial court must dismiss the matter due to Sweet City’s failure to exhaust its
administrative remedies. Id. at 432-433 (1). The Supreme Court further held that
3
We note that the Supreme Court granted the application for discretionary
appeal on the merits and not under OCGA § 5-6-35 (j), which allows an application
to be granted if the trial court’s order was directly appealable.
based on Sweet City’s failure to obtain a final decision from the Board of
Commissioners, the trial court erred in reaching the merits of Sweet City’s claim to
have a vested right in the issuance of a letter of compliance and in addressing Sweet
City’s equal protection claim. Id. at 433-434 (1). With respect to Sweet City’s facial
challenge to the constitutionality of Elbert County’s solid waste ordinance, the
Supreme Court held that the claim was not subject to an exhaustion requirement, but
that the trial court had erred in failing to apply the balancing test set forth in Pike v.
Bruce Church, Inc., 397 U.S. 137 (90 SCt 844, 25 LEd2d 174) (1970), and remanded
the case for it to do so. Elbert Co., 297 Ga. at 434-436 (2).
After the case was remanded, Elbert County amended the challenged ordinance
and filed a motion to dismiss because they contended that the amended ordinance
rendered the remaining claim, the facial challenge to the ordinance, moot. Following
a hearing, the trial court granted Elbert County’s motion. Sweet City appeals this
ruling, contending that the trial court erred in dismissing the declaratory judgment
action based on mootness, failing to analyze Sweet City’s vested rights, and failing
to follow the direction of the Georgia Supreme Court on remand. Elbert County seeks
dismissal of this appeal.
An application for appeal is required when the “underlying subject matter” is
listed in OCGA § 5-6-35 (a), “even when the party is appealing a judgment or order
that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a).” Rebich v.
Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994). All appeals of zoning decisions must
come by way of application. See Trend Dev. Corp. v. Douglas County, 259 Ga. 425,
426 (1) (383 SE2d 123) (1989).
In essence, [the Supreme Court of Georgia] determined in Trend and its
progeny that a zoning decision made by a local government was the
action of a local administrative agency within the meaning of OCGA §
5-6-35 (a) (1), and an appeal from a superior court decision reviewing
the local administrative agency’s decision must come by way of
application pursuant to § 5-6-35 (a) (1).
(Citations omitted.) Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856,
857 (1) (572 SE2d 530) (2002). This rule also applies to appeals from a trial court’s
ruling on a challenge to the constitutionality of a zoning ordinance on its face. See O.
S. Advertising Co. of Ga., Inc. v. Rubin, 267 Ga. 723, 725 (2) (482 SE2d 295) (1997).
And the Supreme Court has made clear that OCGA § 5-6-35 (a) (1) applies even
when review was sought by way of a declaratory judgment or mandamus action. See
Hamryka v. City of Dawsonville, 291 Ga. 124, 125 (2) (728 SE2d 197) (2012). Thus,
under existing Georgia Supreme Court precedent, an application for discretionary
appeal was required. Accordingly, this direct appeal is DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/14/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk. | 01-03-2023 | 03-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5902718/ | Judgments, Supreme Court, New York County (Michael R. Sonberg, J.), rendered on or about February 22, 2010, unanimously affirmed.
Application by appellant’s counsel to withdraw as counsel is granted (see Anders v California, 386 US 738 [1967]; People v Saunders, 52 AD2d 833 [1976]). We have reviewed this record and agree with appellant’s assigned counsel that there are no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within 30 days after service of a copy of this order.
Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice. Concur—Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902719/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered May 13, 1986, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Under the circumstances of this case, it cannot be said that the trial court abused its discretion in denying the defendant’s application for the assignment of new counsel, since good cause therefor was not shown. The defendant’s application for new assigned counsel was first stated during jury selection and his criticism of counsel was not made with sufficient specificity to be evaluated (see, People v Medina, 44 NY2d 199; People v Leach, 108 AD2d 871). The defendant’s claim that counsel was not familiar with his case is belied by the record which showed that counsel had represented the defendant for more than one year prior to the trial.
We also reject the defendant’s contention that he was denied the effective assistance of counsel. The defense counsel presented cogent opening and closing arguments, conducted extensive cross-examination of the witnesses both at the Wade, *829hearing and during trial, and raised appropriate objections. In addition, counsel made an effective presentation at sentencing, providing the court with a presentence memorandum and a psychiatric report, and speaking to numerous points raised by the Probation Department’s presentence report. Thus, the defendant was provided with effective representation both at trial and at sentencing (see, People v Satterfield, 66 NY2d 796; People v Lane, 60 NY2d 748; People v Cartagena, 128 AD2d 797, lv denied 70 NY2d 798).
We do not agree with the defendant’s contention that he was denied a fair trial by certain allegedly prejudicial statements made by the prosecutor during summation. Some of the remarks were responsive to similar remarks made in the defense counsel’s summation (see, People v Blackman, 88 AD2d 620) and any potential prejudice was minimized by specific curative instructions from the trial court (see, People v Williams, 46 NY2d 1070; People v Ashwal, 39 NY2d 105; People v Baldo, 107 AD2d 751). Moreover, the prosecutor’s comments were not so egregious or pervasive as to prejudice the defendant’s case, and the proof of the defendant’s guilt was overwhelming (see, People v Galloway, 54 NY2d 396, 401; People v Roopchand, 107 AD2d 35, 36, affd 65 NY2d 837).
We decline to disturb the sentence imposed upon the defendant as it was within the bounds of the applicable sentencing statute and not excessive (see, People v Farrar, 52 NY2d 302; People v Suitte, 90 AD2d 80). We have considered the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902720/ | Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered October 11, 2011, granting the petition to annul respondents’ determination, dated September 28, 2010, which terminated petitioner’s tenancy on the grounds of non-desirability and breach of rules and regulations, to the extent of remanding the matter to respondents for reconsideration of the penalty, taking into account petitioner’s conduct since the administrative hearing and the feasibility of a probationary period, unanimously reversed, on the law, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed, without costs.
Notwithstanding the evidence adduced at the hearing of petitioner’s progress towards rehabilitation, his three convictions for drug-related crimes in 2008 and 2009, including two convictions for felony drug sale, one of which was determined to have arisen from a sale on Housing Authority grounds, where he resides, constitute grounds for termination of his tenancy (see Matter of Rodriguez v New York City Hous. Auth., 84 AD3d 630 [1st Dept 2011]; Latoni v New York City Hous. Auth., 95 AD3d 611 [1st Dept 2012]).
Supreme Court erred in remanding the matter for consideration of petitioner’s conduct since the administrative hearing in August 2010, i.e., in effect, for further development of the record. "[J]udicial review of administrative determinations is confined to the facts and record adduced before the agency” (Matter of Featherstone v Franco, 95 NY2d 550, 554 [2000] [internal quotation marks omitted]). Concur—Tom, J.P, Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. [Prior Case History: 2011 NY Slip Op 32864(11).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534729/ | [Cite as State v. Hill, 2020-Ohio-2958.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28411
:
v. : Trial Court Case No. 2018-TRD-9576
:
RAYMONE E. HILL : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 15th day of May, 2020.
...........
MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant City of Dayton Prosecuting
Attorney, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
RAYMONE E. HILL, 1141 Tennyson Avenue, Dayton, Ohio 45406
Defendant-Appellant, Pro Se
.............
TUCKER, P.J.
-2-
{¶ 1} Appellant Raymone E. Hill was convicted of driving a vehicle with expired
plates after the trial court overruled his motion to dismiss for a speedy trial violation. Hill’s
oral motion established a prima facie case that he had not been brought to trial within the
statutory speedy trial period. Thus, the trial court erred by summarily overruling Hill’s
motion. The judgment will be reversed and remanded for proceedings consistent with
this opinion.
Facts and Procedural History
{¶ 2} On November 18, 2018, Hill was issued a traffic citation charging him with
driving a vehicle with expired plates in violation of R.C. 4503.21, a minor misdemeanor,
and driving a vehicle with license plates from another vehicle in violation of R.C. 4549.08,
a fourth-degree misdemeanor. The citation included Hill’s address, but it is unclear
whether the address reads 1141 Tennyson Avenue, Dayton, Ohio or 1441 Tennyson
Avenue, Dayton, Ohio.
{¶ 3} On November 28, 2018, as required by the citation, Hill appeared at an
arraignment and pleaded not guilty. The trial court then sent Hill a notice by ordinary
mail to 1441 Tennyson Avenue requiring him to appear at a pretrial conference on
December 13, 2018. Hill did not appear for the conference, and, as a result, an arrest
warrant was issued. For reasons that are unclear,1 on December 20, 2018, the trial
court withdrew the warrant. The record contains a notice, time-stamped on December
1
Hill’s brief states that upon his discovery of the arrest warrant, he “met with [a] Deputy
Clerk” and, as a result, the warrant was withdrawn. The brief further asserts that another
clerk acknowledged that the notice for the December 13 pretrial conference was mailed
to an incorrect address. This all may be true, but these assertions are not part of the
record and, as such, cannot be considered.
-3-
20, ordering Hill to attend a pretrial conference on January 8, 2019. This notice identified
Hill’s address as 1141 Tennyson Avenue.
{¶ 4} Hill appeared at the pretrial conference. During the conference, Hill made
an oral motion to dismiss the pending charges, asserting that he had not been brought to
trial within the statutory speedy trial period. Hill’s motion and the trial court’s decision
overruling the motion are set forth as follows:
THE DEFENDANT: Ok, on the record and for the record and let the record
show on this date, January 8, 2019, in the Dayton Municipal Court, I, the
Defendant, Raymone Hill, I was served with a summons on November 19,
2018 pertaining to these minor misdemeanor charges that are pending for
this court case. If a trial date does not materialize it will be scheduled
outside the permissable [sic] time perimeters [sic] set forth in ORC 2945.71
invoking my speedy trial rights. Now comes the Defendant, Raymone Hill,
without counsel, and I hereby move the Dayton Municipal Court to dismiss
all charges pending on speedy trial grounds and nothing further.
THE COURT: Well you would be right except for the fact that there was a
capias put out on you. When the capias was put out on you for not showing
up to court that started the clock all over again.
THE DEFEANDANT: May I speak to the court?
THE COURT: Sure.
THE DEFENDANT: That capias that was put out on me it was sent to the
wrong address. That address wasn’t mine. I had no knowledge that the
correspondence was sent to my residence or anything to that nature – so.
-4-
THE COURT: Well that was the last address we had for you. So we will
get it set for trial.
THE DEFENDANT: Ok, thank you.
The trial court then set a January 15, 2019 trial date. The matter proceeded to trial at
which Hill was found guilty of driving a vehicle with expired plates but not guilty of driving
a vehicle with license plates from another vehicle. No fine was imposed, but Hill was
assessed court costs which remain unpaid. This appeal followed.
Analysis
{¶ 5} R.C. 2945.71(B)(1) states that “a person against whom a charge of
misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be
brought to trial * * * [w]ithin forty-five days after the person’s arrest or service of summons,
if the offense charged is a misdemeanor of the third or fourth degree * * *.” R.C.
2945.71(D) provides that when multiple charges arise from the same “act or transaction,”
the time requirement for the “highest degree of offense” is used to determine the speedy
trial requirement. Thus, absent an event which extended the 45-day mandate, Hill had
to be brought to trial on or before January 2, 2019.
{¶ 6} A defendant establishes a prima facie speedy trial violation when his motion
reveals that a trial did not occur within the time period prescribed by R.C. 2945.71. State
v. Butcher, 27 Ohio St.3d 28, 31, 500 N.E.2d 1368 (1986). “Once ‘a defendant
establishes a prima facie * * * violation of his right to a speedy trial, the burden shifts to
the State to demonstrate [that] the statutory limit was not exceeded by [showing] the time
was properly extended pursuant to R.C. 2945.72.’ ” State v. Tope, 2d Dist. Greene No.
2019-CA-11, 2020-Ohio-953, ¶ 28, quoting State v. Nichols, 5th Dist. Richland No. 04-
-5-
CA-56, 2005-Ohio-1771, ¶ 11, citing Butcher at 30-31.
{¶ 7} R.C. 2945.72 sets forth a number of events and circumstances which allow
an extension of the applicable R.C. 2945.71 time period. This list includes “[a]ny period
of delay occasioned by the neglect or improper act of the accused[.]” R.C. 2945.72(D).
A defendant’s at-fault failure to appear for a hearing constitutes such neglect or improper
act; thus, the delay caused by an at-fault failure to appear is counted against the
defendant. State v. Clark, 11th Dist. Ashtabula No. 2014-A-58, 2015-Ohio-1209, ¶ 30.
See also State v. Weimer, 2d Dist. Darke No. 1586, 2002-Ohio-7099. But, assuming the
defendant has provided a correct address, sending a hearing notice to an incorrect
address which results in a failure to appear would not be at-fault conduct counted against
the defendant.
{¶ 8} The State suggests that the time between December 13, 2018 (the date Hill
failed to appear) until January 8, 2019 (the date of the pretrial conference) was
appropriately counted against Hill, making the January 15, 2019 trial timely. This may
be so, but the trial court, by summarily overruling Hill’s motion with the comment (made
without evidentiary support) that the December 13, 2018 pretrial notice was sent to “the
last address we had for you[,]” acted to relieve the State from its burden to establish that
the speedy trial time had been extended under R.C. 2945.72.
{¶ 9} The remedy for this misstep is to remand the case for an evidentiary hearing
to determine the fault for Hill’s failure to attend the December 13 pretrial conference.
Conclusion
{¶ 10} For the indicated reasons, the trial court’s judgment is reversed and the
case is remanded for proceedings consistent with this opinion.
-6-
.............
FROELICH, J. and HALL, J., concur.
Copies sent to:
Matthew Kortjohn
Raymone E. Hill
Hon. Daniel G. Gehres | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/6712953/ | Petition by defendant for writ of supersedeas denied and stay dissolved 3 April 1996. Motion by Attorney General to dismiss the appeal for lack of substantial constitutional question allowed 3 April 1996. Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 3 April 1996. | 01-03-2023 | 07-20-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902721/ | Appeal by the People from an order of the Supreme Court, Queens County (Friedmann, J.), dated February 11, 1987, which dismissed the indictment.
Ordered that the order is reversed, on the law, the indictment is reinstated, and the matter remitted to the Supreme Court, Queens County, for further proceedings.
On the date scheduled for trial, the People failed to produce the complaining witnesses. Criminal Term sua sponte dismissed the indictment without setting forth its reasons or rationale. We conclude that the court erred in dismissing the indictment.
CPL 210.20 (1) authorizes the dismissal of an indictment on certain enumerated grounds. Those grounds are all inclusive *830and do not include the failure to prosecute or calendar control (People v Douglass, 60 NY2d 194, 204-205). Criminal Term does not possess the inherent authority to dismiss a criminal action due to a delay in prosecution (People v Douglass, supra; see, People v O’Sullivan, 121 AD2d 658, lv denied 68 NY2d 815). Thus, Criminal Term lacked the authority to dismiss the indictment herein as a matter of law.
Nor do we find that Criminal Term properly dismissed the indictment in the interest of justice. CPL 210.40 (1) permits dismissal "in furtherance of justice” where some compelling circumstance exists and sets forth 10 factors to be considered in determining whether dismissal is appropriate. The statute mandates that the court set forth its reasons for a dismissal upon the record (see, People v Rickert, 58 NY2d 122, 128; People v Garcia, 125 AD2d 186, 187). The record before us is insufficient to support a dismissal of the indictment in the interest of justice (see, People v Henriquez, 68 NY2d 679, 681; People v Rickert, supra, at 133). Under the circumstances, the order appealed from should be reversed and the indictment reinstated. Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902722/ | Appeal by the defendant from a judgment of the County Court, Westchester County (Nicolai, J.), rendered April 2, 1987, convicting him of grand larceny in the third degree and criminal mischief in the third degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
Initially, we find that the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. The defendant contends that the trial court, as fact finder, failed to give proper weight to the testimony of his witnesses, which, if accepted, established that he was not at the scene of the crime. However, resolution of issues of credibility as well as *831the weight to be accorded to the evidence presented are primarily questions to be determined by the fact finder and great deference is accorded to the fact finder’s opportunity to view the witnesses, hear the testimony and observe demeanor (see, People v Bleakley, 69 NY2d 490, 495; see also, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88). The court relied upon the testimony of two police officers who knew the defendant and identified him as the perpetrator. Upon the exercise of our factual review power, after weighing the conflicting testimony, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902724/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Posner, J.), rendered July 27, 1984, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence. This appeal brings up for review (1) the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony, and (2) the denial (Agresta, J.), after a hearing, of the defendant’s motion to dismiss the indictment on speedy trial grounds.
Ordered that the judgment is reversed, on the law and the facts, the plea is vacated, that branch of the defendant’s motion which was to suppress identification testimony is granted to the extent that the pretrial identification of the defendant is suppressed, and the case is remitted to the Supreme Court, Queens County, for further proceedings.
The hearing court erred in refusing to suppress testimony *833regarding the showup identification procedure which occurred at the station house, as the People failed to establish that such a procedure was warranted by exigent circumstances (see, People v Riley, 70 NY2d 523). While the fact that a hostile crowd was gathering at the scene of the crime may have justified the transportation of the defendant to the precinct, this circumstance does not explain why, once the defendant was at the precinct, it would have been unduly burdensome to conduct a reasonably reliable lineup identification. Furthermore, although there may have been several nonuniformed people in the room with the defendant at the time he was identified, the People failed to adduce sufficient evidence regarding the circumstances surrounding the viewing to meet their initial burden of going forward to establish the reasonableness of the police conduct and the lack of suggestiveness of the pretrial identification procedure (see, People v James, 111 AD2d 254, affd 67 NY2d 662). Although we agree with the hearing court’s determination that an independent basis existed for the complainant’s in-court identification, reversal is still required, because on this record we are unable to determine what effect, if any, the erroneous refusal to suppress the defendant’s pretrial identification may have had on the defendant’s decision to plead guilty (see, People v Coles, 62 NY2d 908; People v Riddick, 110 AD2d 787).
We note, however, that the defendant’s contention that dismissal of the indictment is required because he was denied his constitutional right to a speedy trial is without merit (see, People v Taranovich, 37 NY2d 442; People v Manley, 63 AD2d 988).
In light of the foregoing, we need not address the defendant’s contention that the sentence imposed was excessive. Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826249/ | OPINION
REGINALD W. GIBSON, Judge:
Introduction
On October 4, 1985, Tilley Constructors & Engineers, Inc. (hereinafter Tilley or plaintiff) filed an action in this court for an equitable adjustment of its contract with the United States through the Department of the Navy (hereinafter government or defendant). Tilley contends that the government unilaterally modified the original contract after its bid was accepted. The gravamen thereof was that its performance under the allegedly modified contract cost Tilley $368,177.55 more than performance would have under the original agreement. Plaintiffs complaint also requests additional time in which to complete its performance under the modified contract.
This opinion addresses the government’s motion for partial summary judgment under RUSCC 56 which avers that the contract and the incorporated drawings, upon which Tilley bid, were patently clear in their meaning and thus were not subject to misinterpretation by a reasonable and prudent contractor. The jurisdiction of this court is based upon 28 U.S.C. § 1491 and the Contract Disputes Act, 41 U.S.C. §§ 601 et seq.
We grant the government’s motion for partial summary judgment because we find no ambiguity in the operative contractual provisions and, thus, plaintiff’s interpretation thereof was unreasonable.
Statement of the Facts
In July of 1982, the Department of the Navy, Naval Facilities Engineering Command (Navy) entered into a contract with Tilley Constructors & Engineers, Inc. for the construction of an oceanographic research laboratory in Bay St. Louis, Mississippi. The contract required Tilley to construct a concrete superstructure with architectural pre-cast concrete (APC) panels covering the exterior of the building. Under the terms of the contract, Tilley (the prime contractor) was to select a manufacturer (subcontractor) with at least five years of experience in pre-cast concrete manufacturing to design and construct the APC panels to be facially installed on the research laboratory.1 Contractually, the panels were to be erected on the laboratory between January and April of 1983. The contract also provided in ¶ 1.4.3 that “[t]he APC manufacturer shall be solely responsible for the design of all straps, bolts, etc. required to secure embedded weld plates in the APC” (emphasis added).2 Another critical provision in the contract, 112.1.5, provided that the anchoring devices were to be as depicted in the set of contract drawings.3
Included with the narrative portion of the contract upon which Tilley based its submitted bid was a set of graphic contract drawings. Said drawings depicted a steel plate, embedded within each APC panel, to which steel angle plates (“L” shaped) were mounted. The angle plates were used to join the APC panels to the building columns and were attached at one end by a *561bolt and nut through the anchor into the steel plate of the APC panel and welded at the other end to the adjoining building column. The defendant has submitted nine (9) contract drawings that depict the “L” shaped steel angle plate connections to the APC panels, and each further depicts the angles mounted by a weld at one end and a bolt at the other end.4
In furtherance of, and consistent with, the prime contract, Tilley selected Cothran Stone Co. (Cothran) to design and manufacture the APC panels. Following thereon, Cothran, on November 11, 1982, submitted shop drawings to Tilley that depicted the steel angle plate connectors welded at both ends to the APC panels. Said shop drawings of1 Cothran, purporting to comply with II 1.4.2 of the contract as well as the contract drawings, did not call for any bolts to be used in connecting the panels to the structure. These particular drawings, otherwise referred to by the parties as “transmittal number 54,” were later forwarded by Tilley to the Department of the Navy resident officer in charge of construction (ROICC).
On or about November 30, 1982, Tilley received a letter, dated November 26, 1982, from the ROICC, apparently in response to an inquiry made by Tilley, stating:
e. Precast connections can be welded at bottom but bolting at top as detailed is desired. Shop drawings should, in any case, show connection design for review by structural engineer as required. Any proposed changes should be clearly noted and explained.
Appendix to Pltf s Complaint, p. 4 (emphasis added).
An on-site meeting of representatives of the parties took place thereafter on January 5, 1983, at which time the Navy informed Tilley that the steel angle connector plates must be joined to the APC panels by bolts at one end, although the lower end of the angle could be welded to the APC panel. The fact of this meeting and the information passed between the parties were later confirmed in a letter by the Navy to Tilley on January 14, 1983, along with the return of “transmittal number 54,” which the Navy rejected because it did not depict bolted APC panel joints as required by contract drawings. The Navy also requested that Tilley resubmit shop drawings that call for bolted joints as indicated in the contract.
Tilley followed the Navy’s rejection of “transmittal number 54” with a letter dated January 17,1983, stating that, in Tilley’s opinion, “your instructions to use bolted connections with slotted angles [was] in addition to the requirements of the specifications and details on the plans.” The letter also stated that this “addition” to the contract would cost time and money for which Tilley would expect compensation.
On January 21, 1983, Tilley resubmitted shop drawings consistent with the Navy’s demand letter of January 14, 1983, swpra, i.e., these drawings showed a bolted steel angle plate connection as the Navy had demanded. The Navy thereafter requested that Cothran, through Tilley, include design calculations for the steel angle plate joints. Tilley, while stating again that such request was a contract change and would cause additional delays for which the Navy would have to compensate it, provided the design calculations to the Navy on February 14, 1983. On April 6 of that year, as a consequence of the foregoing, the Navy gave its final approval of Tilley’s modified design of the APC panel connections.
As construction of the research lab proceeded under the terms of the contract, two additional problems, according to Tilley, surfaced: (i) the Navy directed Tilley to “change the specified shims;” and (ii) the connections between the APC panels and the roof slab did not fit together properly. Tilley has alleged that it was not allowed to follow the design of Cothran or to perform its tasks in accordance with good construction practice because of changes made to the original contract requirements by the Navy. While the Navy denied that they were changing any contract requirements, *562Tilley again claimed additional damages due to the above contract changes.
Following completion, in December 1984, Tilley filed a claim for damages with the Navy’s contracting officer. The Navy, on March 22, 1985, returned said claim to Til-ley unprocessed, stating in its cover letter that because it was not properly certified, it was “not acceptable.” Included in the cover letter was the demand that Tilley, before the Navy will act upon the complaint, submit a certification reading as follows:
I certify that the claim is made in good faith, that the supporting data is accurate and complete to the best of our knowledge and belief; and that the amount requested accurately reflects our contract adjustment for which we believe the Government is liable.
Tilley resubmitted its claim to the contracting officer with the certification required by the Navy on March 25, 1985, and was thereafter informed that the Navy would issue a decision on its claim no later than July 15, 1985. The Navy thereafter sent Tilley a letter dated June 25, 1985, stating that a decision would be issued prior to September 15, 1985, and that the Navy would notify Tilley of any delays.
On September 20, 1985, five days after the date by which the Navy had informed Tilley a decision would be reached, the Navy telephoned Tilley to say that a decision had not been reached and that it was not known just when a final decision would be reached. Because Tilley deemed the foregoing to be a denial by the contracting officer, it filed a claim in this court on October 4, 1985, alleging damages in the amount of $368,117.55 plus interest as of the date of original certification, and for an extension of contract completion time.
The defendant has moved for partial summary judgment solely on the issue of— whether the contract required bolts to be used to attach the steel angle plates to adjacent APC panels or whether that was discretionary with the APC manufacturer. For the reasons stated below, we grant defendant’s motion.
Contenlions of the Parties
A. Plaintiff
Plaintiff, Tilley, contends that its interpretation of the contract provisions and accompanying drawings, that the steel angle plate connectors could be welded to the APC panels at both ends, was reasonable. Plaintiff further argues that while there may be a valid dispute, the Navy, as the drafter of the contract, has the responsibility for making its intended meaning clear, and that any ambiguity in the contract should be construed to mean what plaintiff, as the non-drafting party, reasonably believed it to mean.
Tilley relies, therefore, upon two grounds to support the reasonableness of its interpretation. First, it asserts that the APC manufacturer was solely responsible for the design of the APC panels and connections and, in view of such, the contract drawings that depicted one end of the steel angle plate connection bolted to the APC panel were for illustrative purposes only. Secondly, the plaintiff also points for support to the language in the letter it received from the Navy dated November 26, 1982, supra, in response to its inquiry, stating that “bolting at top as detailed is desired ” (emphasis added). Plaintiff urges this court to hold that by using the phrase “is desired,” the Navy tacitly admits that the contract itself did not make the requirement to bolt clear and unambiguous, but rather left it to the discretion of the manufacturer.
Therefore, argues plaintiff, since it contentiously complied under protest with defendant’s demand, the court should construe the Navy’s requirement as a modification to the contract and allow plaintiff an appropriate equitable adjustment.
B. Defendant
Conversely, the defendant contends that the contract and related drawings clearly require that the steel angle plate connectors be bolted, rather than welded, to the APC panels. First, says defendant, contract 111.4.2 cannot reasonably be read to permit the APC manufacturer to weld the steel angle plates to the APC panels be*563cause that provision applies to the APC panels themselves, not to the panel connections to the building columns. Second, 112.1.5 unequivocally requires that all “[anchoring devices, inserts, etc., shall be either galvanized or corrosion resistant types approved by the Contracting Officer and as detailed on the drawings ” (emphasis added). The defendant therefore concludes that to accept plaintiffs interpretation would completely “write out” of the contract ¶ 2.1.5 and render the contract drawings of the connection meaningless.
Defendant has, therefore, moved for partial summary judgment on the issue of— whether the contract clearly and unambiguously requires that one end of the steel angle connectors be bolted to the APC panel plate. However, the defendant has not addressed plaintiffs other claims for additional costs for having to allow for vertical and horizontal movement of the panels or for extra work required to fit the roof slabs to the APC panels.
Scope of the Court’s Opinion
Against this background, the court must determine — whether contract # N62467-80-C-0242 clearly and unambiguously required the plaintiff to bolt, as opposed to weld, one end of the steel angle connectors to the embedded weld plate of the APC panel where the contract drawings depict such a bolted connection but the contract provides that the APC manufacturer is responsible for designing the APC panels. The court will also address the issue of — whether, assuming arguen-do, as plaintiff contends, the contract is ambiguous, said ambiguity was patently obvious, thus giving rise to plaintiffs duty to seek an immediate clarification from the contracting officer.
Discussion
A. Contract Interpretation
Interpretation of contract provisions is a question of law which is properly decided by a court. See P.J. Maffei Building Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984). As both parties to this action point to the written contract in support of their respective positions, this court is therefore called upon to serve as interpreter thereof, which is to say we must “step into the shoes of a ‘reasonable and prudent contractor’ and decide how such a contractor would act in the [plaintiffs] situation.” Id. at 916, citing H.N. Bailey & Associates v. United States, 196 Ct.Cl. 156, 163, 449 F.2d 387, 390 (1971).
In implementing such a seemingly subjective standard, the court must, of course, apply basic principles of contract law. Initially, the court must read the contract as a whole, rather than isolating particular terms and attempting to glean their meaning outside of their intended context. See Gelco Builders & Burjay Construction Corp. v. United States, 177 Ct.Cl. 1025, 369 F.2d 992 (1966). Thus, where reasonably possible, the contract should be read in such a way as to give effect and meaning to all its terms, and to render no term meaningless. Moreover, the words used in the contract should be given their ordinary meaning. See ITT Arctic Services, Inc. v. United States, 207 Ct.Cl. 743, 752, 524 F.2d 680, 684 (1975). Finally, the court will read the terms of the contract to find concord, rather than discord. See Unicon Management Corp. v. United States, 179 Ct.Cl. 534, 538, 375 F.2d 804, 806 (1967).
Yet, despite these guidelines, courts are, of course, often faced with contracts that can only be described as ambiguous. An ambiguity in this context is defined as a contract that can sustain more than one reasonable interpretation. See Max Drill, Inc. v. United States, 192 Ct.Cl. 608, 627, 427 F.2d 1233, 1245 (1970); Salem Engineering and Construction Corp. v. United States, 2 Cl.Ct. 803, 806 (1983). Upon the finding of such an ambiguity, the doctrine of contra proferentem instructs the court that the provision should be construed against the drafter, provided, as has already been stated, that the non-drafting party’s interpretation is reasonable, see Stuyvesant Dredging Co. v. United States, 11 Cl.Ct. 853, 861 (1987), citing W.P.C. Enterprises v. United States, 163 Ct.Cl. 1, 6-7, 323 F.2d 874, 876-77 (1963), and the ambiguity is not patently obvious, as discussed infra.
*564This background leads us to now consider plaintiffs contention that the contract is ambiguous. This is so, says plaintiff, because the drawings depict the angle bolted at one end to the APC panel and, on the other hand, it (the contract) permits the contractor to design the steel angle plate connections. Such circumstance, argues plaintiff, should be construed against the Navy. Plaintiff rests this contention first upon 111.4.2 of the contract:
[i] The APC manufacturer shall be . solely responsible for the proper design of cast units to withstand all stresses, strains, and temperature changes.
[ii] The APC manufacturer shall be solely responsible for the design of all straps, bolts, etc. required to secure embedded weld plates in the APC.
[iii] The blast loads shall be as indicated on the building elevation drawings, [and]
[iv] The contractor shall be solely responsible for all stresses and strains incurred during erection.
According to the plaintiff, said provision requires it to design both the panel and its connectors to the building column.
Reading the foregoing provision as liberally as plaintiff would have us do, this court is nevertheless unable to find creditable support for this contention anywhere in 111.4.2. The first sentence does not contain any reference whatsoever to connectors. Rather, this sentence speaks solely to the requirements concerning the cast units (APC panels) themselves, and simply requires that they be made to withstand all stresses, strains, and temperature changes. It seems to this court to be only reasonable for the Navy to require an adequate type of concrete and construction so as to “withstand all stresses [and] strains,” and the plaintiff’s contention that this sentence does anything more is, in our judgment, wholly untenable. Thus, the charge is that the panels, as designed, must be able to withstand all stresses and strains — even those caused by the insertion of bolts into the panel weld plates, as contemplated by the contract drawings. This does not mean that the contractor may dictate or limit what stresses and strains the panels must withstand, for they clearly must withstand all.
Similarly, we read the second sentence in 111.4.2 not to apply to APC panel connections, but instead to the intrinsic construction of the APC panels themselves. In each panel, there was to be embedded a steel receptive plate to which connections could be bolted as depicted in the contract drawings. The court reads this provision “as one that gives” the Navy assurance that these plates would not become dislodged from the panel by a crack in a weld. Nowhere in this sentence can the court find so much as a suggestion that the APC manufacturer is charged with the responsibility of designing the connectors which tie the APC panels to the structure. Not surprisingly, plaintiff points to no language therein that could reasonably be so read.
The third and fourth sentences are equally devoid of any such interpretation. While the third sentence describes blast loads, the fourth serves to make clear that the “stresses” referred to in the first sentence include those incurred during erection.
In short, we are constrained to read If 1.4.2 as applying to the APC panels themselves, not to the manner by which the connectors (angle plates) are tied to the APC panels and to the building columns. We find, in light of the foregoing, that the plaintiffs interpretation of this paragraph as providing the contractor with discretionary authority to design the manner by which the APC panel is attached to the angle plates is not a reasonable one.
This is especially true in light of the fact that no less than nine (9) contract drawings of the APC panel connectors clearly depict steel angles bolted to the embedded APC panel plates at one end. In addition, 112.1.5 unambiguously states that “anchoring devices ... shall be as detailed on the drawings.’’ (emphasis added). The court has no difficulty in understanding the term “anchoring devices,” in the context of the overall purpose of the APC panels, to include the connectors in question. Not only *565does plaintiff fail to challenge the defendant’s use of the term in that context, but the plaintiff itself used the term “anchor ing method” to describe the subject matter of this dispute in a letter to the contracting officer dated March 7, 1983. (Appendix to Pltf’s Complaint, p. 21).
The plaintiff is asking this court to isolate If 1.4.2 apart from its context and glean from it a meaning, or implication, that is perfectly contrary to the balance of the contract. This the court cannot do. Aside from the fact that we are unable to read 111.4.2 in such a tortuous manner as to give the contractor authority to design the APC panel connectors, such an excursion would run contrary to the basic principles of contract law, supra. For example, rules requiring the court to read the contract as a whole, to find concord rather than discord, and to avoid interpretations that render other provisions useless from “the perspective of ‘... reasonably intelligent person[s] acquainted with the contemporary circumstances’ ” would all be compromised if we were to accept plaintiff’s interpretation. ITT Arctic, 207 Ct.Cl. at 752, 524 F.2d at 684, citing Firestone Tire & Rubber Co. v. United States, 195 Ct.Cl. 21, 30, 444 F.2d 547, 551 (1971). The court must, therefore, “[ascribe] to the contract language ‘its ordinary and commonly accepted meaning’ ... without twisted or strained out of context analysis.” ITT Arctic, 207 Ct.Cl. at 752, 524 F.2d at 684, quoting Hol-Gar Manufacturing Corp. v. United States, 169 Ct.Cl. 384, 390, 351 F.2d 972, 976 (1965); Aero Mayflower Transit Co. v. United States, 162 Ct.Cl. 233, 237 (1963). In doing so, we are unable to read 111.4.2 to grant the plaintiff authority to design the panel connectors.
It is worthy of note, though not surprising, that plaintiff has not offered any explanation as to how it interprets ¶ 2.1.5, and we can think of no reasonable alternative interpretation to that already provided, to wit, that the drawings, which depicted the use of bolts, were to be followed in the design of the connectors.' Plaintiff’s proffered interpretation of 111.4.2, therefore, would be perfectly contrary to H 2.1.5 and consequently would render the contract drawings useless, or, as plaintiff cryptically phrases it, “for illustrative purposes only.”
In addition to its averment regarding 111.4.2, plaintiff relies upon a letter dated November 26, 1982, from the Navy to plaintiff, stating that use of bolted APC panel connectors as detailed in the drawings “is desired,” in support of its contention that the APC manufacturer had at least tacit authority to design the connectors. Plaintiff introduces this letter as an admission on the part of the Navy that the contract was not clear as to what connectors (bolts vs. welds) were required and that the Navy only “desired,” as opposed to “required,” that the connectors be designed according to the drawings.
This court does not attribute to said letter near the significance that plaintiff does for the simple reason that it bubbled up after the fact. The plaintiff had long before submitted its bid and the contract had been awarded. By the time the Navy sent the letter on November 26, 1982, it had already received “transmittal number 54” from Cothran (November 11, 1982), and was therefore aware that its position was contrary to that of the contractor. While conduct of the parties prior to the dispute can be very useful evidence in determining what their true intentions were, the same is not true as to conduct taking place post litem, motam. “Only the action of the parties ‘before a controversy arises is highly relevant in determining what the parties intended.’ ” Dynamics Corporation v. United States, 182 Ct.Cl. 62, 73, 389 F.2d 424, 430 (1968), quoting Northbridge Electronics, Inc. v. United States, 175 Ct.Cl. 426, 438, n. 8 (1966).
Clearly, the Navy realized, at the time the November 26 letter was written, that plaintiff was contemplating connecting the APC panels to the building columns with welds, not bolts. Though legal action may not yet have been imminent, a dispute certainly was. The Navy was well aware that plaintiff would not welcome the position being taken by it (the Navy) and that the plaintiff would likely seek to avoid making *566such changes. That the Navy did not respond to plaintiff’s submittal in an adversarial tone indicates, to this court, very little, particularly in view of the unambiguous contractual provisions and related drawings.
The plaintiffs last point in support of its contention that the contractor was authorized to design the panel connectors is that —the Navy would not have required the contractor to submit design calculations for such had they not intended the contractor to design the connectors. Appendix to Pltf s Complaint, p. 15. Again, this request came after the dispute had arisen and, for this reason, is also not very meaningful. See Dynamics, 182 Ct.Cl. at 73, 389 F.2d at 430. Furthermore, what the plaintiff fails to realize is that the Navy did not require it to furnish design calculations for discretionary connectors, but rather design calculations for bolted connectors, in accord with the contract drawings, not in spite of them.
The Navy’s explicit and graphic requirement that the APC panels be connected to the building column by bolts, as opposed to welds, is not ambiguous, but clear beyond cavil. The contract drawings clearly and unquestionably depict such a connection, and ¶ 2.1.5 lucidly requires the contractor to construct the anchoring devices in accordance with those drawings. Plaintiff offers no reasonable explanation for its contrary interpretation, and this court in its search is unable to find one. Therefore, we must hold that because we find the contract to be unambiguous, the Navy is not indebted to the contractor for any extra costs the “contractor” incurred as a result of having to alter, , modify, and redesign the APC panels so as to utilize bolted connections.
B. Duty To Seek Clarification
Assuming arguendo that 111.4.2 could reasonably be read to be ambiguous, the plaintiff would still not prevail on these facts, for the existence of a patent ambiguity, as here, gives rise to a bidder’s duty to seek a clarification from the contracting officer. See Collins International Service Co. v. United States, 744 F.2d 812, 814 (Fed.Cir.1984); Newsom v. United States, 230 Ct.Cl. 301, 676 F.2d 647 (1982); Mountain Home Contractors v. United States, 192 Ct.Cl. 16, 20-21, 425 F.2d 1260, 1263 (1970); Cherryhill Sand & Gravel Co. v. United States, 8 Cl.Ct. 757, 762-64 (1985). A patent ambiguity has been defined as “an obvious omission, inconsistency, or discrepancy of significance.” Beacon Construction Co. v. United States, 161 Ct.Cl. 1, 6-7, 314 F.2d 501, 504 (1963). Failure of a bidder to seek a clarification of a patent ambiguity (so defined) prior to submitting its bid precludes that bidder from later recovering from work that it reasonably, but wrongly, believed was not required by the contract. See Newsom, 230 Ct.Cl. at 303, 676 F.2d at 649, and cases cited therein.
While this doctrine of patent ambiguity runs contrary to the doctrine of contra proferentem, it serves as a necessary exception to protect the government from being taken advantage of by contractors who “bridge the gap in [their] own favor.” Max Drill, 192 Ct.Cl. at 625, 427 F.2d at 1244. It also benefits the bidders themselves in that it ensures that all bidders are in fact bidding on identical specifications. See Newsom, 230 Ct.Cl. at 303, 676 F.2d at 649.
In the case at bar, assuming that II.4.2 can reasonably be read to give the contractor authority to design the APC connectors, we hold that such an interpretation gives rise to a patent ambiguity, as ¶ 2.1.5 would directly contradict it. Plaintiff failed not only to seek clarification of its perceived ambiguity as to whether bolted connections were required, but it further omitted tendering any explanation for such failure. Furthermore, plaintiff cavalierly noticed that the nine (9) contract drawings depicted a bolted APC panel connection, but negligently assumed that they were “for illustrative purposes only.” The court finds it difficult, as it must, to imagine a clearer example of a contractor “[bridging] the gap in his own favor.” Max Drill, 192 Ct.Cl. at 625, 427 F.2d at 1244. Hence, even assuming an ambiguity, we find that *567plaintiff’s interpretation gives rise to a patent (and not latent) ambiguity in that it presents two clearly obvious discrepancies and inconsistencies.
As nothing in the pleadings of either party indicates that plaintiff ever fulfilled its duty to seek clarification of this obvious patent ambiguity, it cannot recover an equitable adjustment for this reason as well.
Conclusion
The contract between the Navy and Til-ley Constructors clearly and unambiguously required bolted connections of the APC panels to the building columns. Furthermore, even assuming that there did exist such an tiff, faced with contradictory provisions and contract drawings, had a duty to seek a clarification from the contracting officer, which duty it did not fulfill.
For all of the foregoing reasons, defendant’s motion for partial summary judgment is granted. A status conference is hereby set for Tuesday, October 11, 1988, at 10:00 a.m., at the National Courts Building, Washington, D.C. The appropriate manner of proceeding on all remaining issues, if any, will be the subject matter.
IT IS SO ORDERED.
APPENDIX
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*568[[Image here]]
*569[[Image here]]
*570[[Image here]]
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*575[[Image here]]
. The following operative contractual provision stated that:
1.4.1. All cast units shall be the product of a manufacturer who is regularly engaged in the production of architectural precast concrete units, and has had at least five years experience in the manufacture of similar cast unit work. They shall also have the financial capability and production facilities to meet the required schedule.
. The following operative contractual provision stated that:
1.4.2. The APC manufacturer shall be solely responsible for the proper design of cast units to withstand all stresses, strains and temperature changes. The APC manufacturer shall be solely responsible for the design of all straps, bolts, etc. required to secure embedded weld plates in the APC. The blast loads shall be as indicated on the building elevation drawings. The Contractor shall be solely responsible for all stresses incurred during erection.
(emphasis added).
.Paragraph 2.1.5 stated that:
2.1.5. Anchoring devices, inserts, etc., shall be either galvanized or corrosion resistant types approved by the Contracting Officer and as detailed on the drawings.
. See Appendix attached for contract drawings. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902726/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunkin, J.), rendered March 3, 1986, convicting him of robbery in the first degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his conviction should be reduced to robbery in the second degree because the People failed to establish that the victim sustained serious physical injury (see, Penal Law § 10.00 [10]; § 160.15 [1]). The record establishes that the elderly victim fell to the ground after the defendant ran into her with his bicycle and that he punched *834her repeatedly in an attempt to wrestle her handbag from her grasp. As a result, the victim sustained several external and internal injuries which included contusions, two fractured ribs and an incomplete fracture of the spine. Five days after sustaining these injuries, the victim died of a massive pulmonary thromboembolism which was caused by a traumatic deep vein thrombosis or blood clotting in the left lower leg. The medical examiner opined that a contusion of the victim’s left lower leg led to the blood clotting. Furthermore, he stated that the contusion was consistent with having been caused by an impact with the edge of a pavement and with having occurred on the date of the crime. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that the evidence was legally sufficient to establish beyond a reasonable doubt that the victim sustained "serious physical injury” (Penal Law § 10.00 [10]; § 160.15 [1]).
The defendant also contends that the People did not disprove his alibi beyond a reasonable doubt. However, resolution of issues of credibility, as well as the weight to be accorded to the evidence, are primarily questions to be determined by the trier of fact (see, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo 44 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902727/ | Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered September 13, 2010, as amended October 6, 2010, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree and sentencing him, as a second felony drug offender, to a term of six years, with three years’ postrelease supervision, unanimously affirmed.
*428Defendant has not preserved his claim that the court failed to advise him of the length of the postrelease supervision (PRS) component of the sentence he would receive in the event that he violated the terms of his guilty plea. Defendant was on notice, well before sentence was imposed, that if he absconded from a drug program he would receive a sentence that would include at least three years of PRS. Therefore, he was required to preserve this issue by moving to withdraw his plea (People v Murray, 15 NY3d 725, 726-727 [2010]).
We decline to review this unpreserved claim in the interest of justice, and as an alternative holding we reject it on the merits. When the plea colloquy is read as a whole, it clearly establishes that the court itself, with the assistance of the prosecutor, warned defendant that the applicable PRS term was at least three years, and possibly five years. While there appears to have been some momentary confusion between the court and the prosecutor about whether the appropriate PRS term was three or five years, that discrepancy did not prejudice defendant, as he was actually sentenced to the lower PRS term (see People v Carter, 67 AD3d 603, 604 [2009], lv denied 14 NY3d 886 [2010]). Thus, the court gave defendant all the information he needed to “knowingly, voluntarily and intelligently choose among alternative courses of action” (People v Catu, 4 NY3d 242, 245 [2005]). Furthermore, any confusion as to whether the PRS term was three or five years was resolved by a written plea agreement, which defendant subsequently executed in open court.
We perceive no basis for reducing the sentence. Concur— Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902729/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Corriero, J.), rendered June 14, 1984.
Ordered that the judgment is affirmed (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9; People v *836Kazepis, 101 AD2d 816). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902730/ | Appeal by the defendant from two judgments of the County Court, Suffolk County (Copertino, J.), both rendered January 29, 1985, convicting him of attempted burglary in the third degree (two counts, one as to each indictment), upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
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