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https://www.courtlistener.com/api/rest/v3/opinions/5902732/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Meyerson, J.), rendered March 8, 1985, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
During a period of observation that lasted more than one hour, two police officers saw the defendant and the codefendant Caraballo involved in four separate transactions. In each transaction, a described male obtained a blue packet which the defendant took from a cigarette box in exchange for currency. The currency was given to Caraballo directly or was transferred to him by the defendant. Two of the buyers were arrested following the transaction and a blue packet of heroin was found on each of them. When the defendant and Caraballo were arrested, the defendant had a cigarette box containing 7 blue packets with an 8th blue packet in his pocket. Each of these packets contained heroin. A search of Caraballo revealed an unspecified amount of currency.
The defendant’s contention that the narcotics should not have been received in evidence because the prosecution had not established a continuous unbroken chain of custody is without merit. Each police officer who seized the narcotics testified that he placed the evidence in a numbered property clerk’s envelope, sealed it, signed it and deposited it with the property clerk in the precinct, for delivery to the laboratory. Each chemist who analyzed the narcotics testified that he received the property clerk’s envelope with the seal and signature intact. Such testimony provided reasonable assurances of the identity of the evidence and that its condition was unchanged (see, People v Julian, 41 NY2d 340; People v Newman, 129 AD2d 742, lv denied 70 NY2d 652; People v McCutcheon, 122 AD2d 169; People v Piazza, 121 AD2d 573, lv denied 68 NY2d 916).
The defendant’s contention on appeal that the court erred in admitting into evidence certain narcotics found on one of the buyers, other than the blue packet of heroin, is unpreserved for appellate review. In any event, while it is true that these other narcotics were irrelevant to the charges against this defendant, the court expressly directed the jury not to *837consider any part of that exhibit, except the blue packet of heroin.
Similarly, the defendant’s contention that the court erred in receiving testimony that Caraballo had an unspecified amount of currency when he was arrested is unpreserved. In any event, such evidence was relevant where, as here, there was testimony of four transactions involving the exchange of money to the defendants shortly before the arrest. This establishes a nexus between the transactions and the currency found on the codefendant which was probative of the counts charging the defendants with possession with intent to sell (People v Milom, 75 AD2d 68).
The defendant contends that the People failed to prove that he sold heroin or possessed heroin with intent to sell. Viewing the evidence in a light most favorable to the People (People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the conviction. The People proved that he transferred certain blue packets containing heroin for cash. Nor was the verdict against the weight of the evidence. Upon the exercise of our factual review power (CPL 470.15 [5]), we find that the weight of the evidence establishes that the defendant, acting in concert with his codefendant, sold heroin and possessed heroin with intent to sell it.
We have considered the defendant’s remaining contention and find it to be unpreserved for appellate review and, in any event, 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/5902734/ | Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered June 27, 2012, which, to the extent appealed from as limited by the briefs, denied defendants PC. Richard & Son, LLC and A.J. Richard & Sons, Inc.’s (PC Richard) motion for summary judgment dismissing the complaint and cross claims against them and for an award of reasonable attorneys’ fees and costs against defendant City Bay Plaza, LLC, unanimously modified, on the law, the motion granted to the extent of dismissing the complaint and all cross claims against PC Richard, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
*429In this action for personal injuries, plaintiff alleges that he tripped and fell over a piece of metal on the edge of a curb cut adjacent to a sidewalk in front of a shopping plaza, where PC Richard is a tenant. As a tenant of the shopping center, not an abutting landowner, PC Richard has no statutory obligation to maintain the public sidewalk adjacent to its store (Administrative Code of City of NY § 7-210; see Rothstein v 400 E. 54th St. Co., 51 AD3d 431 [2008]). Further, under the terms of the 1998 lease between PC Richard and defendant landlord City Bay Plaza, LLC, PC Richard has no obligation to maintain the sidewalk (see Collado v Cruz, 81 AD3d 542 [1st Dept 2011]).
Even if it were shown that PC Richard constructed the subject sidewalk after entering into the lease, there is no evidence that the construction was negligently performed, or that the defect that allegedly caused plaintiff’s accident 8 to 10 years later, resulted from such construction, rather than the effects of the passage of time (see Siegel v City of New York, 86 AD3d 452, 455 [1st Dept 2011]). Nor is PC Richard liable under a special use theory, since it made no special use of the public sidewalk, and there is no evidence that the alleged defect was caused by its use of the sidewalk (see Balsam v Delma Eng’g Corp., 139 AD2d 292 [1st Dept 1988], appeal dismissed in part, denied in part 73 NY2d 783 [1988]).
PC Richard is not, however, entitled to recover reasonable attorneys’ fees and costs from the landlord, since the lease provision it relies upon applies when legal fees and costs are incurred to “enforce or protect its rights under [the] lease,” not in defense of a personal injury action (see Cier Indus. Co. v Hessen, 136 AD2d 145, 148 [1st Dept 1988]). 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/5902735/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered July 7, 1986, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The record reveals, contrary to the defendant’s contention, that the Trial Judge in this case did not relinquish control over the proceedings, thereby depriving the defendant of his right to a proper trial by jury (cf., People v Ahmed, 66 NY2d 307, rearg denied 67 NY2d 647). Initially, we observe that since the alleged error neither "affect[ed] the organization of the court [n]or the mode of proceedings proscribed by law” (People v Patterson, 39 NY2d 288, 295, affd 432 US 197), the defendant’s stipulation to the alleged impropriety now complained of renders his claim unpreserved for appellate review (CPL 470.05 [2]; cf., People v Mehmedi, 69 NY2d 759, rearg denied 69 NY2d 985; People v Ahmed, supra). After having personally reminded the jurors of its prior admonition against premature deliberation (CPL 270.40), and having temporarily dismissed them subsequent to the delivery of opening statements but prior to the presentation of evidence, the Trial Judge, no more than one hour later, had the court officer, upon stipulation of both counsel, remind the jurors of the prior admonition and dismiss them. While this procedure is not to be encouraged, it is not tantamount to an unconstitutional delegation of supervisory authority (see, People v Torres, 133 AD2d 713, lv granted 70 NY2d 938).
We have examined the defendant’s remaining contention and find it to be unpreserved for appellate review and, in any event, 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/5902736/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered March 5, 1985, convicting him of assault in the second degree (three counts), upon a jury verdict, and sentencing him to three consecutive indeterminate terms of 2Vá to 7 years’ imprisonment.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the terms of imprisonment imposed run concurrently. As so modified, the judgment is affirmed.
*840While the trial court should have redacted the charges for which the defendant was being arrested from the arrest warrants admitted into evidence, as this information was of no probative value and was prejudicial to the defendant, reversal is not required as a result thereof since the court twice instructed the jury not to consider those charges and the jury was already aware that the defendant was being arrested for prior crimes. Moreover, the error was harmless since the evidence against the defendant was overwhelming.
The sentencing court had the authority to impose consecutive sentences upon the defendant’s conviction for three counts of assault in the second degree, as each assault was a separate act against a different victim (see, People v Brathwaite, 63 NY2d 839). Nevertheless, under the facts of this case, we believe that the sentences for the separate counts should run concurrently.
Finally, although the prosecutor violated CPL 390.40 (2) by waiting until the day of sentencing to serve his presentence memorandum on defense counsel, a practice that should not be repeated, resentencing is not required since defense counsel was given the opportunity to review the memorandum, and the sentencing court, effectively, refused to consider those allegations contained in the memorandum to which the defendant did not have the opportunity to respond.
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/5902737/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered November 26, 1984, convicting him of assault in the second degree and criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the indictment is dismissed, without prejudice to the People to represent any appropriate charges to another Grand Jury (see, People v Beslanovics, 57 NY2d 726). Upon service upon him of a copy of this decision and order, with notice of entry, the official having custody of the defendant’s person is directed to produce him, forthwith, before the Supreme Court, Kings County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on his own recognizance, or fixing bail, or committing him to the *841custody of the Commissioner of the New York City Department of Correction pending resubmission of the case to the Grand Jury and the Grand Jury’s disposition thereof (cf., CPL 210.45 [9]). Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a Grand Jury, (b) arraignment of the defendant upon an indictment filed as a result of a resubmission of the case to a Grand Jury, (c) the filing with the court of a Grand Jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of the order of this court to be made hereon, provided that such period may, for good cause shown, be extended by the Supreme Court, Kings County, to a designated subsequent date if such be necessary to accord the People reasonable opportunity to resubmit the case to a Grand Jury. Findings of fact have been considered and are determined to be established.
The defendant’s contention that the People failed to prove his guilt beyond a reasonable doubt is without merit. Viewing the evidence in the light most favorable to the prosecution, as we must, any rational trier of fact could have found the elements of the crimes charged beyond a reasonable doubt (see, Jackson v Virginia, 443 US 307, 319, reh denied 444 US 890; People v Lewis, 64 NY2d 1111, 1112). Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
However, the matter must be remitted for a new trial. Prior to trial, but following the defendant’s waiver of his right to a jury trial, his trial counsel requested that the trial court issue a ruling as to which, if any, of the defendant’s prior crimes would be a proper subject of cross-examination if he took the stand. The Trial Judge refused to make such a ruling inasmuch as he felt that it would unduly prejudice him to review the defendant’s criminal history. Moreover, the court directed the prosecutor "to do what I would do and, that is to say, balance, balance the necessity for giving the judge the impeaching materials against the danger of prejudicing the defendant by trotting out a list of convictions that may have nothing to do with credibility as such”.
On appeal, the defendant contends that the court’s failure to rule on his Sandoval motion (People v Sandoval, 34 NY2d 371) improperly denied him his right to testify on his own behalf. We agree. The policy underlying Sandoval was that the accused has the right to make an informed choice concern*842ing the important determination as to whether he should take the stand (People v Sandoval, supra, at 375). In this regard, the Court of Appeals noted that an advance ruling aids the defendant in answering the following significant question, "[w]ill the testimony to be elicited in cross-examination have a disproportionate and improper impact on the triers of factV’ (People v Sandoval, supra, at 376 [emphasis added]). Inasmuch as the Court of Appeals did not limit Sandoval to jury trials, the defendant is entitled to a prior determination on his Sandoval application, by a trial court sitting as the trier of fact (see, Hale v Jay, 101 Misc 2d 636; cf., People v Rosa, 96 Misc 2d 491). Moreover, the Trial Judge is not per se compromised by issuing such a ruling because a Judge is capable of distinguishing the prejudicial aspects of a defendant’s prior record from those crimes which bear on his credibility (see, People v Moreno, 70 NY2d 403; People v Brown, 24 NY2d 168; People v Cortese, 136 AD2d 724). Thus, the defendant was denied a fair trial by the court’s failure to issue a Sandoval ruling.
The court did not err, however, in denying the defendant’s request for a Wade hearing. Where, as here, the complainant and the defendant knew each other for TO years prior to the crime, there was no identification issue within the purview of CPL 710.30 (1) (b) (see, People v Tas, 51 NY2d 915, 916; People v Gissendanner, 48 NY2d 543, 552; People v Miles, 103 AD2d 1017, 1018).
Finally, we note that, under the circumstances, the court improperly imposed consecutive sentences. Mollen, P. J., Bracken, Rubin and Sullivan, JJ., concur. [See, 128 Misc 2d 818.] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902924/ | Appeals having been taken to this Court by the above-named appellant from an order of the Supreme Court, New York County (Judith J. Gische, J.), entered March *46516, 2012, and said appeals having been argued by counsel for the respective parties; and due deliberation having been had thereon, it is unanimously ordered that the order so appealed from be and the same is hereby affirmed for the reasons stated by Judith J. Gische, J., without costs and disbursements. Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. [Prior Case History: 2012 NY Slip Op 30400(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902925/ | Order of the Supreme Court, New York County (Irma Vidal Santaella, J.), entered on July 16, 1987, which granted the petitioner’s application to compel compliance with a subpoena duces tecum to the extent of directing that respondent produce the records sought for an in camera inspection by the court, is reversed on the law, the subpoena quashed and the petition dismissed, without costs or disbursements.
Respondent Sheltering Arms Childrens Service, a not-for-profit child welfare agency providing a variety of services to children and families, is an "authorized agency” within the definition of section 371 (10) of the Social Services Law and is licensed, approved and regulated by the New York State Department of Social Services. Petitioner is president of a union which is a party to a collective bargaining agreement with respondent. On October 10, 1986, the agency was advised that one of its employees, a houseparent at a foster group home and one of petitioner’s members, had improperly permitted two adolescent girls to remain overnight at a home for boys where they had slept in a room with two adolescent boys. A third female child had allegedly remained for the night in the houseparent’s room and had engaged in sexual intercourse with him. During this visit, the employee had supposedly supplied the youngsters with marihuana and had encouraged them to drink beer. Following an investigation conducted in connection with this matter, respondent found that there was *239sufficient evidence to substantiate the charges and terminated the employee, retroactive to October 10, 1986. The union thereupon challenged the discharge, filed a grievance and, pursuant to the collective bargaining agreement, submitted the dispute to arbitration.
Prior to the arbitration hearing, petitioner served respondent with a subpoena duces tecum demanding the production of "all notes, charts, records and other documents pertaining in whole or in part to the history, admission, care, discipline, treatment, residence and custody of [the named child witness who was scheduled to testify at the hearing] and all other former or present residents of Sheltering Arms Children’s Services who will testify on behalf of the Employer”. However, respondent, citing Social Services Law § 372, refused to comply with the subpoena, and the instant enforcement proceeding ensued. In that regard, the union contended in its petition that the information being sought is necessary to determine whether the witnesses involved have a history of making charges and claims against respondent’s employees and whether they have "any substance abuse, physical disciplinary or psychological problem that would affect [their] willingness and ability to perceive, recollect or testify accurately.” The Supreme Court granted the application to the extent of directing that respondent produce the records in question for an in camera inspection by the court, concluding that such a result was mandated by the holding in Matter of Howell v New York City Human Resources Admin. (97 AD2d 352, appeal dismissed 61 NY2d 758).
Section 372 (3) of the Social Services Law states that: "Upon application by a parent, relative or legal guardian of such child or by an authorized agency, after due notice to the institution or authorized agency affected and hearing had thereon, the supreme court may by order direct the officers of such institution or authorized agency to furnish to such parent, relative, legal guardian or authorized agency such extracts from the record relating to such child as the court may deem proper. The department [of social services] through its authorized agents and employees may examine at all reasonable times the records required by this section to be kept.”
Respondent is one of those agencies required by law to maintain records with respect to any child it receives, accepts or commits (Social Services Law § 372 [1]). It is undisputed that petitioner herein is attempting to procure material kept by Sheltering Arms Childrens Service itself rather than De*240partment of Social Services records relating to that agency. However, Social Services Law § 372 (3) restricts access of an authorized agency’s documents to a "parent, relative or legal guardian” of a child or to another "authorized agency”. Petitioner clearly does not fit into one of these enumerated categories, and it is, therefore, not entitled to disclosure of the client records of an authorized agency (see, Matter of Department of Juvenile Justice v George, 111 Misc 2d 19, which, in a situation very similar to the instant matter, denied a party’s application to obtain records of certain juveniles who were prospective witnesses against him). Although section 372 (3) has been construed in such a manner as to enable an individual to seek to examine his own files (Sam v Sanders, 80 AD2d 758, affd 55 NY2d 1008), the expansion of standing beyond that expressly specified in the statute has been extremely circumscribed (see also, Matter of Louis F., 42 NY2d 260). As the Court of Appeals explained in Sam v Sanders (55 NY2d 1008, 1010, supra), in discussing petitioner’s effort also to acquire information relating to his sisters, the burden was upon him to convince the court that disclosure would be proper and not detrimental to the best interests of the children involved.
There is certainly no claim here that production of the agency’s records would be in the best interests of the child witnesses. On the contrary, petitioner’s application was brought solely for the purpose of discovering information which could be used to impeach their credibility should they testify at the arbitration proceeding. Thus, even assuming that standing could somehow be found under Social Services Law § 372 (3) to permit the union to seek access to respondent’s records, the case before us does not reveal any basis for granting the petition. The reason for this is that the union’s subpoena duces tecum is framed in general terms and envisions a wholesale fishing expedition into the files of the nonparty witnesses in the hope of uncovering some material, still unknown, that might conceivably be helpful in attacking the children’s credibility. Yet, courts have consistently disallowed such fishing expeditions as herein contemplated by petitioner (People v Gissendanner, 48 NY2d 543; Matter of Gelderman, 111 AD2d 332; Teamsters Local 237 v Trans World Life Ins. Co., 88 AD2d 509; City of New York v Friedberg & Assocs., 62 AD2d 407). Even in criminal prosecutions, where there is a public interest in protecting the constitutional right of accused persons to confront and cross-examine adverse witnesses, "access has been denied in cases in which the *241defendant failed to demonstrate any theory of relevancy and materiality, but, instead merely desired the opportunity for an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable him to impeach the witness” (People v Gissendanner, supra, at 549). Finally, it should be noted that the case relied upon by the Supreme Court in rendering its decision, Matter of Howell v New York City Human Resources Admin, (supra), is distinguishable from the instant situation in that not only was petitioner in that matter deemed to have made an independent showing of necessity warranting an in camera inspection by the court, but, more significantly, he sought disclosure against a governmental agency rather than a private authorized agency. Production of records kept by the former is not subject to the limitations of section 372 (3) of the Social Services Law. Consequently, the union’s subpoena duces tecum should have been quashed and the petition dismissed. Concur—Milonas, Rosenberger and Ellerin, JJ.
Kupferman, J. P., and Kassal, J., dissent in a memorandum by Kupferman, J. P., as follows: I would affirm.
It should be emphasized that the application was granted only to the extent of requiring an in camera inspection by the court. The court has the power to require such inspection. (See, Matter of Howell v New York City Human Resources Admin., 97 AD2d 352, appeal dismissed 61 NY2d 758.) Of course, the "confidential information [should] not be easily disclosed (see Social Services Law, § 372).” (Matter of Louis F., 42 NY2d 260, 264-265.)
We are not yet met with the question of whether the matter in the records will be of sufficient moment to justify making it available to the arbitrator. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902738/ | Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered June 27, 2012, which, to the extent appealed from as limited by the briefs, denied defendants PC. Richard & Son, LLC and A.J. Richard & Sons, Inc.’s (PC Richard) motion for summary judgment dismissing the complaint and cross claims against them and for an award of reasonable attorneys’ fees and costs against defendant City Bay Plaza, LLC, unanimously modified, on the law, the motion granted to the extent of dismissing the complaint and all cross claims against PC Richard, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
*429In this action for personal injuries, plaintiff alleges that he tripped and fell over a piece of metal on the edge of a curb cut adjacent to a sidewalk in front of a shopping plaza, where PC Richard is a tenant. As a tenant of the shopping center, not an abutting landowner, PC Richard has no statutory obligation to maintain the public sidewalk adjacent to its store (Administrative Code of City of NY § 7-210; see Rothstein v 400 E. 54th St. Co., 51 AD3d 431 [2008]). Further, under the terms of the 1998 lease between PC Richard and defendant landlord City Bay Plaza, LLC, PC Richard has no obligation to maintain the sidewalk (see Collado v Cruz, 81 AD3d 542 [1st Dept 2011]).
Even if it were shown that PC Richard constructed the subject sidewalk after entering into the lease, there is no evidence that the construction was negligently performed, or that the defect that allegedly caused plaintiff’s accident 8 to 10 years later, resulted from such construction, rather than the effects of the passage of time (see Siegel v City of New York, 86 AD3d 452, 455 [1st Dept 2011]). Nor is PC Richard liable under a special use theory, since it made no special use of the public sidewalk, and there is no evidence that the alleged defect was caused by its use of the sidewalk (see Balsam v Delma Eng’g Corp., 139 AD2d 292 [1st Dept 1988], appeal dismissed in part, denied in part 73 NY2d 783 [1988]).
PC Richard is not, however, entitled to recover reasonable attorneys’ fees and costs from the landlord, since the lease provision it relies upon applies when legal fees and costs are incurred to “enforce or protect its rights under [the] lease,” not in defense of a personal injury action (see Cier Indus. Co. v Hessen, 136 AD2d 145, 148 [1st Dept 1988]). 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/5902739/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered May 9, 1985, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The People established a prima facie case against the defendant on the count of robbery in the second degree. Accordingly, the trial court’s denial of the defendant’s motion for a trial order of dismissal was proper (see, CPL 290.10 [1]; People v Levine, 106 AD2d 471). Moreover, it was not error for the trial court to exclude the self-serving hearsay testimony which defense counsel sought to elicit on cross-examination from the People’s witness (see, Richardson, Evidence §§ 220, 357, 519 *843[Prince 10th ed]). Thompson, J. P., Brown, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902740/ | Order, Supreme Court, New York County (Judith J. Gische, J.), entered May 14, 2012, which granted defendants’ motion to reargue their CPLR 3211 motion to dismiss the complaint and, upon reargument, modified the order, same court and Justice, entered August 10, 2011, denying their motion to dismiss the complaint, solely to state that defendants are named insureds *430under the subject insurance policy, and otherwise adhered to the original determination, unanimously affirmed, without costs. Appeal from August 10, 2011 order, unanimously dismissed, without costs, as superseded by the appeal from the May 14, 2012 order.
Defendant Tishman Construction Corporation of New York entered into a contract to serve as the general contractor for construction of a building owned by Yeshiva University. Tishman subcontracted with defendant Sirina Fire Protection Corp. to install the building’s fire suppression system. It is alleged that one of the sprinkler pipe couplings failed, causing water damage to several floors in the building. Plaintiff Allianz Global Risks US Insurance Company, Yeshiva’s property insurer, paid Yeshiva more than $550,000 to cover the loss.
Allianz commenced this subrogation action against defendants to recover the insurance payment it made to Yeshiva. The complaint alleges that the damages were caused as a result of Sirina’s negligent installation of the fire suppression system, and Tishman’s approval of the improperly installed system. Defendants moved to dismiss the action as barred by the antisubrogation rule. Defendants assert that they are covered by a liability insurance policy issued by AIG under an Owner Controlled Insurance Program, and that Yeshiva is obligated to cover the first one million dollars of damages. Defendants argue that, if successful, plaintiff will essentially recover from Yeshiva, its own insured, because the damages alleged are less than one million dollars.
At this pre-answer stage of the proceedings, we cannot say, as a matter of law, that the action is barred by the antisubrogation rule. In the absence of discovery, there are issues of fact as to whether the AIG policy provides coverage to defendants for the loss. The complaint lacks sufficient details about the scope and location of the damages to the building, precluding a determination as to whether certain exclusions in the policy apply (see George A. Fuller Co. v United States Fid. & Guar. Co., 200 AD2d 255, 259-261 [1st Dept 1994], lv denied 84 NY2d 806 [1994]).
We have considered defendants’ remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Sweeny, Richter, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902742/ | Appeal by the defendant, as limited by her brief, from a sentence of the County Court, Suffolk County (Seidell, J.), imposed June 3, 1986.
*844Ordered that the sentence is affirmed.
Contrary to the defendant’s contention, the sentence imposed was neither harsh nor excessive. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/185273/ | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000 Decided October 6, 2000
No. 99-7228
Nikita Shonta Petties, et al.,
Appellees
v.
District of Columbia, et al.,
Appellants
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00148)
Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, argued the cause for appellants. With him on the
briefs were Robert R. Rigsby, Corporation Counsel, and
Charles L. Reischel, Deputy Corporation Counsel.
James L. Feldesman argued the cause for appellees. With
him on the brief was Tanya A. Harvey. Jennifer P. Rosen-
berg entered an appearance.
Before: Edwards, Chief Judge, Ginsburg, and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: The district court issued interim
awards of attorneys' fees to plaintiffs in this ongoing class
action suit against the District of Columbia for failing to
comply with the Individuals with Disabilities Education Act
(IDEA). Pursuant to Federal Rule of Civil Procedure 54(b),
the district court certified two of those interim awards for
immediate appeal. We conclude that this court lacks jurisdic-
tion to review the awards for want of either a final or a
collateral order.
I. Background
The plaintiff children instituted a class action against the
District of Columbia in January, 1995, stating a cause of
action under 42 U.S.C. s 1983 based upon the District's
noncompliance with the IDEA, 20 U.S.C. ss 1400 et seq. In
March, 1995 the district court preliminarily enjoined the
District to fund private school placements that would meet
the special educational needs of the plaintiffs. In July, 1995
the plaintiffs amended their complaint to allege continuing
violations by the District.
Between April and September 1995 the district court issued
a series of injunctions and contempt orders in an effort to
bring the District into compliance with the IDEA. See
Petties v. District of Columbia, 897 F. Supp. 626, 627-28
(D.D.C. 1995). In June, 1995 the plaintiffs, in order to
finance this continuing litigation, began filing quarterly mo-
tions for attorneys' fees. Their first 14 such motions, which
the District did not oppose, were based upon the provision for
attorneys' fees in the IDEA.
In October, 1998 the Congress passed the D.C. Appropria-
tions Act of 1999, s 130 of which limited the attorneys' fees
the District could pay (per hour and per case) under the
IDEA in Fiscal Year 1999. The District then sought to
vacate the order granting the plaintiffs' fourteenth motion for
attorneys' fees, and contested the plaintiffs' fifteenth and
sixteenth such motions, maintaining that the district court
may not award fees in excess of the amounts specified in the
Appropriations Act. The plaintiffs responded that they are
entitled to recover reasonable attorneys' fees pursuant to 42
U.S.C. s 1983 and the Rehabilitation Act of 1973, 29 U.S.C.
s 794, rather than the IDEA.
The district court agreed. The court reasoned that the
plaintiffs' case must have been brought under s 1983, as
stated in the amended complaint, because the suit could not
have been brought under the IDEA; the "plaintiffs were not
aggrieved by decisions that were made .... by the hearing
officers" under the IDEA, but by the District's failure to
discharge its already-adjudicated obligations. Recognizing
the urgency to the parties of the attorneys' fee issue, the
district court opined that "if either side wants to go to the
Court of Appeals, th[en] they ought to be able to do it sooner
rather than later." Pursuant to Rule 54(b), therefore, the
court gave "an express direction for the entry of judgment"
on plaintiffs' fifteenth and sixteenth motions for attorneys'
fees and made an "express determination that there is no just
reason for delay."
The District of Columbia appealed that judgment (No.
99-7228) and separately appealed from the following orders
concerning the fourteenth, fifteenth, and sixteenth motions
for attorneys' fees: the initial orders to pay the awards (No.
99-7109); the order lifting the stay of the District's obli-
gations to pay portions of the awards not in dispute (No.
99-7194); and the order certifying the fifteenth and sixteenth
awards for interlocutory appeal pursuant to 28 U.S.C.
s 1292(b) (No. 99-8004). A motions panel of this court
denied leave to pursue the interlocutory appeal (No. 99-8004)
and dismissed the two appeals (Nos. 99-7109 and 99-7194)
that the district court had not certified under Rule 54(b),
holding that the fourteenth, fifteenth, and sixteenth orders to
pay attorneys' fees "are not final nor do they fall within the
collateral order doctrine, see Coopers & Lybrand v. Livesay,
437 US 463, 468 (1978), because they will be reviewable upon
entry of a final judgment." Petties v. District of Columbia,
1999 U.S. App. LEXIS 34733, at *2. At the same time the
panel directed the parties to brief the question whether this
appeal (No. 99-7228) was properly certified under Rule 54(b).
II. Analysis
Rule 54(b) authorizes the district court to "direct the entry
of a final judgment as to one or more but fewer than all of the
claims [in an action] ... upon an express determination that
there is no just reason for delay." The rule thus permits the
district court to "function[ ] as a 'dispatcher,' determining in
its sound discretion when a claim should proceed on to
appellate resolution and when it should await its fellows."
Taylor v. FDIC, 132 F.3d 753, 760 (D.C. Cir. 1997).
At the same time, the rule "does not relax the finality
required of each decision, as an individual claim, to render it
appealable"; it simply permits the appeal of a claim as to
which the district court has reached a final judgment while
other claims remain to be resolved in the district court.
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 (1956). In
other words, the district court "cannot, in the exercise of its
discretion, treat as 'final' that which is not 'final' within the
meaning of [28 U.S.C.] s 1291." Id. at 437 (emphasis delet-
ed). Nor can this court, notwithstanding the district court's
certification per Rule 54(b), properly review "a judgment that
is not final by ordinary standards." Taylor, 132 F.3d at 760
n.2.
The Supreme Court has recognized but a single variation
on the theme of finality, namely, the collateral order doctrine.
To qualify, an "order must [1] conclusively determine the
disputed question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment." Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
A motions panel of this court has already determined,
however, that the fifteenth and sixteenth orders at issue in
this case "are not final nor do they fall within the collateral
order doctrine, see Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978), because they will be reviewable upon entry of
a final judgment." Petties, 1999 U.S. App. LEXIS 34733, at
*2. Does it matter that this particular appeal has been
certified by the district court under Rule 54(b)? That is the
question the motions panel put to the parties, and we now
answer it in the negative. Indeed, the prior panel's own
decision dooms this appeal. Under this court's practice, a
decision of the motions panel is the law of the case; a later
panel considering the merits is bound by that law. See
Taylor, 132 F.3d at 761. Because the motions panel has
determined that the interim awards of attorneys' fees will be
reviewable when the district court enters a final judgment in
this case, we are bound to conclude that the court lacks
jurisdiction over this appeal.
The District agrees with our account of Circuit practice but
nonetheless argues, along with the plaintiffs, that we should
revisit the decision of the motions panel and assert jurisdic-
tion. While neither party claims the orders under review
have the requisite finality, both parties attempt to show they
will suffer irreparable injury so as to warrant interlocutory
appeal.
For its part, the District argues that the orders harm it
irreparably by frustrating the intent of the Congress that the
District's liability for attorneys' fees be capped as provided in
s 130 of the Appropriations Act; by depriving District stu-
dents, insofar as attorneys' fees exceed the caps, of monies
appropriated for their use; and by diverting funds from their
intended purpose, in violation of the Appropriations Clause,
art. I, s 9, cl. 7 of the Constitution of the United States. To
the extent these arguments take issue with the prior determi-
nation of the motions panel, they are foreclosed. To the
extent they suggest that the Rule 54(b) certification alters our
jurisdictional inquiry under s 1291, they are misconceived.
The cases the District itself cites emphatically confirm this.
See Estate of Drayton v. Nelson, 53 F.3d 165, 167 (7th Cir.
1994) ("Rule 54(b) cannot be used to make the award appeal-
able"); People Who Care v. Rockford Bd. of Educ. Dist. No.
205, 921 F.2d 132, 134 (7th Cir. 1991) ("Rule 54(b) allows the
entry of judgment only with respect to the final disposition of
a claim for relief"); Shipes v. Trinity Industries, Inc., 883
F.2d 339, 342 (5th Cir. 1989) ("Rule 54(b) ... relaxes only the
'judicial unit' aspect of finality principles and otherwise oper-
ates within the constraints of statutory finality"). The plain-
tiffs' arguments fare no better. The precedents cited above
utterly refute their central argument, namely, that Rule 54(b)
certification distinguishes this appeal from those the motions
panel dismissed.
Plaintiffs also argue that even if the collateral order doc-
trine does not apply here, "orders compelling the immediate
transfer of property may be appealable where irreparable
harm will result." In support of this proposition they cite
Forgay v. Conrad, 47 U.S. 201 (1848), in which the Supreme
Court held that an interlocutory appeal may be taken when
an interim order would immediately transfer a party's proper-
ty; they further point to a more recent dictum of the Seventh
Circuit to the effect that an interim award of attorneys' fees
might present a situation like that in Forgay because there
are "chancy prospects of recoupment at the end." People
Who Care, 921 F.2d at 135. While we are not at all sure that
Forgay has continuing vitality apart from the collateral order
doctrine, it is obvious in any event that plaintiffs' showing
falls short of the mark this court has established. See
National Association of Criminal Defense Lawyers, Inc. v.
U.S. Dept. of Justice, 182 F.3d 981, 985 (1999) (irreparable
injury can be shown only where the party awarded fees "will
likely be unable to repay the fees if the award is later
reduced or overturned"). Plaintiffs say they "cannot guaran-
tee to the Court that [plaintiffs'] counsel will not become
judgment proof by the time the litigation is concluded." Of
course, there are precious few guarantees in life and virtually
none when it comes to financial affairs; merely acknowl-
edging this undeniable possibility, however, falls far short of
showing it "will likely" come to pass. On plaintiffs' rationale,
interim awards would be appealable as a matter of course.
That clearly is not the law of this court, much less of this
case.
The plaintiffs advert to the "numerous and complex tax and
accounting dilemmas" they must confront if this court does
not promptly and definitively resolve the propriety of the
attorneys' fees awarded them. The uncertainty surrounding
their right to attorneys' fees in the amounts awarded does
indeed create formidable practical difficulties for them, to
which this court is not unsympathetic. The district court is
free to consider any proposals counsel may make for easing
their predicament. These might include placing interim
awards partially in escrow with the district court until this
litigation is concluded, but they do not include expanding our
appellate jurisdiction beyond the final and collateral orders
that this court is authorized to review.
III. Conclusion
For the foregoing reasons we conclude that the court lacks
jurisdiction over this appeal, which is, therefore,
Dismissed. | 01-03-2023 | 02-05-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5902944/ | Order, Supreme Court, New York County (David H. Edwards, Jr., J.), entered September 18, 1987, which granted defendants’ motion for reargument of their prior motion to reconsider the court’s earlier decision awarding summary judgment to plaintiff and which, upon reargument, recalled and vacated the order entered January 29, 1987 granting, inter alia, summary judgment to plaintiff on liability, unanimously reversed, on the law, without costs or disbursements, and the motion for reargument denied and the order granting summary judgment reinstated.
In this statutory right of privacy action (Civil Rights Law §§ 50, 51), partial summary judgment on liability and permanent injunctive relief were properly granted since defendants were unable to offer a meritorious defense to the unauthorized marketing of plaintiff’s photograph on packages, or hang tags attached to articles, of clothing manufactured, distributed or sold by them. They argued verbal consent, clearly unavailing under the statute (Brinkley v Cassablancas, 80 AD2d 428, 434; Adrian v Unterman, 281 App Div 81, 88, affd 306 NY 771), although cognizable as a partial defense in mitigation of damages (Lomax v New Broadcasting Co., 18 AD2d 229), as well as laches in that, for a period of 16 months, with knowledge of such use of her photograph, plaintiff never raised any objection. Defendants also urged both of these points in support of the further argument that even plaintiff construed the release form which she signed both at the time *262she first learned of defendants’ use of her photograph on the packages, and at an earlier photographic session four months before, as a written consent to such use. Reargument/renewal was granted and the original award of summary judgment vacated on the basis of the Statute of Limitations and ambiguity in the written consent.
In our view, neither of these grounds constituted a basis for reargument or renewal or the vacatur of the previous grant of summary judgment. In opposing the motion for summary judgment, defendants never argued or even hinted that plaintiff’s claims were barred by the one-year Statute of Limitations (see, CPLR 215 [3]), which, in the case of a mass distribution of a name or photograph in violation of Civil Rights Law §§ 50, 51, is subject to the "single publication” rule (see, Khaury v Playboy Publs., 430 F Supp 1342). Nor did their answer assert the same as an affirmative defense, as is required. (See, CPLR 3018 [b].) Thus, having neither been pleaded nor asserted in a motion to dismiss (see, CPLR 3211 [a] [5]), the Statute of Limitations defense was waived. (See, CPLR 3211 [e].) In such circumstances, neither reargument nor renewal should have been granted. The court had not overlooked or misapplied any controlling principle of law or fact. Nor were any new facts not available on the original submission presented. Finally, we find totally lacking in merit the claim of ambiguity in the release provision consenting to the use of plaintiff’s photograph "for print advertising only.” The same release provided that "certain products, packaging usage, billboards, countercards, and similar special usage requires separate negotiations.” That the type of photographic dissemination involved here was not encompassed by the written consent could not be clearer. An assessment of damages is in order, as originally directed. Concur—Kupferman, J. P., Sullivan, Carro, Kassal and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823522/ | Process for producing molecular sieve adsorbents. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902744/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered March 19, 1986, convicting him of criminal sale of a *846controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932; People v Contes, 60 NY2d 620, 621), we find that the evidence was legally sufficient for the jury to find the defendant guilty of the charge upon which he was convicted. Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15 [5]). The packet of cocaine which the defendant sold to the undercover officer was properly admitted into evidence since there were reasonable assurances of its identity and unchanged condition (see, People v Julian, 41 NY2d 340, 343-344; People v Strouder, 124 AD2d 841, lv denied 69 NY2d 955). Under the circumstances of this case, the alleged deficiencies in the chain of custody went to the weight of the evidence and not to its admissibility, since the two basic requirements of proof of identity and unchanged condition had been established (see, People v Julian, supra, at 344; People v Piazza, 121 AD2d 573, 574, lv denied 68 NY2d 916).
We have considered the defendant’s other contentions and find them to be either without merit or unpreserved for appellate review. Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902745/ | Order, Supreme Court, New York County (Judith J. Gische, J.), entered May 14, 2012, which granted defendants’ motion to reargue their CPLR 3211 motion to dismiss the complaint and, upon reargument, modified the order, same court and Justice, entered August 10, 2011, denying their motion to dismiss the complaint, solely to state that defendants are named insureds *430under the subject insurance policy, and otherwise adhered to the original determination, unanimously affirmed, without costs. Appeal from August 10, 2011 order, unanimously dismissed, without costs, as superseded by the appeal from the May 14, 2012 order.
Defendant Tishman Construction Corporation of New York entered into a contract to serve as the general contractor for construction of a building owned by Yeshiva University. Tishman subcontracted with defendant Sirina Fire Protection Corp. to install the building’s fire suppression system. It is alleged that one of the sprinkler pipe couplings failed, causing water damage to several floors in the building. Plaintiff Allianz Global Risks US Insurance Company, Yeshiva’s property insurer, paid Yeshiva more than $550,000 to cover the loss.
Allianz commenced this subrogation action against defendants to recover the insurance payment it made to Yeshiva. The complaint alleges that the damages were caused as a result of Sirina’s negligent installation of the fire suppression system, and Tishman’s approval of the improperly installed system. Defendants moved to dismiss the action as barred by the antisubrogation rule. Defendants assert that they are covered by a liability insurance policy issued by AIG under an Owner Controlled Insurance Program, and that Yeshiva is obligated to cover the first one million dollars of damages. Defendants argue that, if successful, plaintiff will essentially recover from Yeshiva, its own insured, because the damages alleged are less than one million dollars.
At this pre-answer stage of the proceedings, we cannot say, as a matter of law, that the action is barred by the antisubrogation rule. In the absence of discovery, there are issues of fact as to whether the AIG policy provides coverage to defendants for the loss. The complaint lacks sufficient details about the scope and location of the damages to the building, precluding a determination as to whether certain exclusions in the policy apply (see George A. Fuller Co. v United States Fid. & Guar. Co., 200 AD2d 255, 259-261 [1st Dept 1994], lv denied 84 NY2d 806 [1994]).
We have considered defendants’ remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Sweeny, Richter, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902746/ | *431Judgment, Supreme Court, New York County (Robert M. Stolz, J. at dismissal motion; Cassandra M. Mullen, J. at plea and sentencing), rendered March 22, 2011, convicting defendant of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 3 Vs years, unanimously reversed, on the law, the indictment dismissed, and leave granted to the People to apply for an order permitting resubmission of the charges to another grand jury.
On January 4, 2010, defendant was arrested as part of an undercover drug buy and bust operation. Four days later, the People presented to a grand jury evidence of three charges against defendant: criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance on or near school grounds, and resisting arrest. After the presentation, the grand jury failed to muster a vote for indictment or dismissal for any of the charges, but took “no affirmative action” on them. After the prosecutor recalled witnesses for additional testimony, the grand jury voted to indict defendant for resisting arrest, but again took no action on the drug sale charges.
At defendant’s arraignment later that month, the prosecutor stated that she intended to re-present the drug sale charges to another grand jury, but did not seek the court’s authorization for the re-presentation. In February 2010, the prosecutor submitted the drug sale charges to a second grand jury, along with additional counts for defendants’ possession of bags containing cocaine residue and crack pipes. The second grand jury voted to indict defendant for both drug sale charges and the possession charges, and thereafter the two indictments were consolidated.
In April 2010, defendant moved pursuant to CPL 210.20 for an order dismissing the drug sale charges on the ground that, after the first grand jury had failed to vote to indict on those charges, the prosecutor violated CPL 190.75 (3) by re-presenting them to the second grand jury without authorization. The court denied the motion on the ground that its permission was unnecessary where, as here, the first grand jury took no action on the drug charges and the prosecutor did not “withdraw” them before re-presenting.
In January 2011, defendant pleaded guilty to a reduced charge of criminal sale of a controlled substance in the fourth degree, in full satisfaction of the consolidated indictment.
It was error to deny defendant’s motion to dismiss the drug sale counts. Under CPL 190.75 (3), the People cannot re-present *432a charge that a grand jury has dismissed unless the court in its discretion authorizes or directs resubmission. Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75 (3) if the prosecutor “prematurely takes the charge from the grand jury” (People v Credle, 17 NY3d 556, 558 [2011]). In Credle, after the People presented drug charges against the defendant to a grand jury, they unsuccessfully tried to muster sufficient votes to indict or dismiss, and then offered the grand jury the option of voting “no affirmative action” on the charges (id.). After the grand jury accepted that option, the People, without seeking the court’s permission, terminated the proceedings and resubmitted the charges to a second grand jury, which indicted the defendant (id.). The Court of Appeals dismissed the drug charges, explaining that when a prosecutor terminates a grand jury’s deliberations before it has disposed of the matter in one of the five ways permitted by CPL 190.60, the critical question as to whether a dismissal was effected was “ ‘the extent to which the [g]rand Q]ury considered the evidence and the charge’ ” (17 NY3d at 560, quoting People v Wilkins, 68 NY2d 269, 274 [1986]). In Credle, the prosecutor terminated the first grand jury proceedings after it had made a complete presentation and directed the jury to deliberate over the charges, and accordingly the proceedings were deemed to amount to a dismissal (17 NY3d at 560).
The People’s attempt to distinguish this case from Credle on the ground that here the prosecutor did not formally “withdraw” the drug charges against defendant from the first grand jury, but instead allowed its term to expire, is unpersuasive. The distinction has no bearing on whether the charges were effectively dismissed by the grand jury’s failure to indict after a full presentation of the case.
Defendant’s guilty plea does not preclude his claim, because the prosecution’s noncompliance with CPL 190.75 (3) was a jurisdictional defect (see People v Hansen, 95 NY2d 227, 230-232 [2000] [holding a defendant’s “right to be prosecuted on a jurisdictionally valid indictment survive(s) (a) guilty plea”]). The prosecution’s failure to adhere to the statutory procedure “affect[ed] the jurisdiction of the court, and as such appellate review thereof was neither waived nor forfeited by the defendant” (People v Jackson, 212 AD2d 732, 732 [2d Dept 1995], affd 87 NY2d 782 [1996] [where the prosecutor, without first obtaining the court’s authorization pursuant to CPL 210.20 (6) (b), resubmitted charges that were the subject of a reduction order more than 30 days after the order’s entry, the defendant’s guilty *433plea did not preclude his challenge on appeal]).* Concur— Andrias, J.P., Friedman, Acosta, Freedman and Richter, JJ.
In People v Jackson (212 AD2d 732 [1995]), the People raised an argument similar to the argument that they raise here, namely, that the defendant’s guilty plea forfeited his claim that an unauthorized re-presentation of charges to a second grand jury, because the error was non-jurisdictional. In affirming the reversal of the conviction on the merits without discussing that issue (87 NY2d 782), the Court of Appeals necessarily rejected the People’s forfeiture argument. Accordingly, in view of Jackson, we decline to follow our decision in People v McCoy (91 AD3d 537 [1st Dept 2012]). We note that the appellate briefs for McCoy did not bring Jackson to the attention of the panel that decided McCoy. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1714900/ | 851 So.2d 1152 (2003)
Darrell SCOTT and Bonnie McFarland
v.
DAUTERIVE HOSPITAL CORPORATION, et al.
No. 02-1364.
Court of Appeal of Louisiana, Third Circuit.
April 23, 2003.
Rehearing Denied June 18, 2003.
*1155 Harry Douglas Hoskins, III, Hoskins & Hoskins, LC, New Orleans, LA, for Plaintiff/Appellant Darrell Scott.
Marc W. Judice, Judice, Hill & Adley, Lafayette, LA, for Defendant/Appellee, Louisiana Insurance Guaranty Association.
Stephen Gary McGoffin, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, St. Paul Fire & Marine Insurance Company, Dauterive Hospital Corporation.
Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
AMY, Judge.
The plaintiff filed suit against the defendant hospital, alleging that inadequate care in its emergency room resulted in physical injury. He pursued various negligence theories of recovery and sought damages under the Emergency Medical Treatment and Active Labor Act (EMTALA) as well. The jury denied the plaintiff's claims of EMTALA violations, gross negligence, inadequate credentialing, and inadequate training and supervision of employees, but found the hospital breached the standard of care owed to the plaintiff. However, the jury concluded that this breach did not cause damage to the plaintiff. The plaintiff appeals. For the following reasons, we affirm.
Factual and Procedural Background
The plaintiff, Darrell Scott, received injuries as the result of a bar fight on February 27, 1994. The record indicates that injury possibly resulted from a bottle being broken over his head. At the time of the incident, Mr. Scott was accompanied by his girlfriend, Bonnie McFarland. When Ms. McFarland found Mr. Scott lying on the ground outside of the bar in New Iberia, she telephoned for an ambulance. Acadian Ambulance Service received the telephone call, arriving at the scene at 1:36 a.m. Paramedic Keith Pellerin testified that he found Mr. Scott lying on the ground, but his eyes were open. He explained that Mr. Scott was awake, "but very lethargic." He noted a "small one and a half inch laceration to the left temporal lobe." Mr. Pellerin found the plaintiff's pupils to be round, equal, and reactive to light. He found the smell of alcohol on the plaintiff's breath to be "very strong." Mr. Pellerin testified that he indicated on his report that the patient's condition at the scene was "non-emergent," a term he described as meaning "non life threatening." The plaintiff was transported to Dauterive Hospital in New Iberia.
On arriving at the hospital, Mr. Scott was attended by Nurse Mona Moore[1] and *1156 Dr. Agapito Castro, a physician with Coastal Emergency Medical Services of Louisiana. By contract, Coastal provided emergency physician services to Dauterive. Nurse Moore noted on the emergency room report that Mr. Scott was "awake, alert, skin warm, dry to touch." She explained that she would have noted if she had found the patient to be lethargic. There is no indication of lethargy on the emergency room record. Furthermore, there is no inscription on the record indicating Dr. Castro's finding as to whether Mr. Scott was awake, alert, or oriented. He stated that "in this particular case the nurse said that the patient was awake, alert, and I took her word for that." Dr. Castro ordered x-rays of Mr. Scott, which, according to the x-ray technician performing the tests, were not completed due to Mr. Scott's inability to keep his mouth open for the completion of one of the tests.[2] The technician testified that he noted the patient to be "highly intoxicated." Dr. Castro testified that, if he was informed of the inability to complete the x-rays series, he could not recall it. Dr. Castro sutured Mr. Scott's laceration and released him.
According to Ms. McFarland, her brother and the nurse assisted Mr. Scott to the car for transport home. Mr. Scott was released with a set of instructions. Ms. McFarland stated that after she and Mr. Scott were returned to their camper, she attempted to wake Mr. Scott every hour or two, according to the release instructions. She contends that, eventually, she telephoned the ambulance when Mr. Scott became incontinent and began vomiting. Mr. Scott was transported to University Medical Center in Lafayette and then to Charity Hospital in New Orleans. At Charity, he underwent brain surgery, resulting in the removal of two hematomas from his right frontal and right temporal lobes. The parties do not dispute that the surgery has impacted Mr. Scott's life, resulting in behavioral and cognitive imbalances.
The instant matter was initially filed in April 1995.[3] Dr. Castro, Coastal, Dauterive and its insurer, St. Paul Fire and Marine Insurance Company, were named as defendants in the various supplemental and amending petitions that have been filed since that time. The matter has a lengthy history, with numerous supplemental and amending petitions and the addition of parties and various theories of recovery. The plaintiff's basic contention is that his symptoms were such that a CT scan should have been ordered to eliminate the possibility of injury to the brain while he was at Dauterive. He also asserts that, had a blood alcohol test been performed, it would have eliminated drunkenness as a cause of what he contends was his lethargic condition at the hospital. He argues this was not done due, in part, to his uninsured status. He argues that had the CT scan been performed at the hospital, the surgery required due to the hematomas could have been performed more quickly. He asserts that the resulting damage to his brain was increased by the delay.
Pursuant to a February 2001 settlement, Dr. Castro, Coastal, the Louisiana Patient's Compensation Fund (PCF), and the Louisiana Insurance Guaranty Association, were released from the suit. The plaintiff continued this matter against the instant defendants, Dauterive and St. Paul. At trial, the plaintiff argued that Dauterive breached the standard of care owed in a *1157 number of respects, failed to adequately credential Dr. Castro for the emergency room, and failed to properly train and supervise its employees. He argued that the conduct in the emergency room was not only negligent, but grossly negligent. The plaintiff also asserted that the hospital failed to provide an adequate screening as required by EMTALA. The jury denied the plaintiff's claims, although it found that Dauterive breached the standard of care owed. However, it concluded that this breach was not the cause of damages to the plaintiff.
The plaintiff appeals, asserting various interrelated assignments of error and issues for review. With regard to pretrial proceedings, the plaintiff contests a partial summary judgment entered as to Dauterive's status as a qualified health care provider. He also questions the jury charges provided, contending that they were inadequate in several respects. He contends the inadequate instructions caused jury error and require a de novo review. The plaintiff also contests a motion in limine that was granted, which excluded evidence of future medical damages which he argued were available under EMTALA and theories of recovery not arising under the Medical Malpractice Act. Next, the plaintiff contests several of the findings of the jury, contending that their findings required the granting of a new trial. Finally, the plaintiff argues that the trial court erred in excluding evidence as to taxes that would be due from the plaintiff in the event he received a lump sum award for lost earning capacity.
Discussion
Qualified Health Care Provider Status
Prior to trial, the parties filed cross motions for summary judgment on the issue of whether Dauterive is a qualified health care provider, which subjects the plaintiff to the "cap" of the Medical Malpractice Act. The trial court granted the motion filed by Dauterive, concluding that the hospital was a qualified health care provider. The plaintiff's motion was denied. The plaintiff asserts that this determination was in error, arguing that the St. Paul policy issued to the hospital is not a malpractice liability insurance policy at all, but is a "fronting" policy that constitutes a surety agreement. He contends that it does not meet the requirements of La.R.S. 40:1299.42(E)(1) and, therefore, Dauterive cannot avail itself of the cap of the Medical Malpractice Act.[4]
*1158 In support of his motion for summary judgment on this issue, the plaintiff points to deposition testimony of a St. Paul representative, Jane Lienemann. She testified that the premium paid by HealthTrust, Inc., Dauterive's parent company, for the policy issued by St. Paul, was not reflective of exposure to liability, but rather, was what she described as a fronting premium, reflective of costs associated with issuing and servicing the policy. She also testified regarding an Indemnification Agreement dated September 1993, in which Health-Trust agreed to indemnify St. Paul for liabilities under the policy. HealthTrust also agreed to establish a trust containing assets in order to cover the liabilities.
The plaintiff further contends that wording in other areas of the medical malpractice provisions indicate that the type of policy issued by St. Paul is not that required for application of the cap described above. Specifically, the plaintiff points to La.R.S. 40:1299.44(A)(3)(a) regarding payment of a surcharge by the health care provider to the Patient Compensation Fund as follows: "Such surcharge shall be due and payable to the patient's compensation fund within forty-five days after the premiums for malpractice liability insurance have been received by the agent of the insurer, risk manager, or surplus line agent from the health care provider in Louisiana." (Emphasis added.) Additionally, La.R.S. 40:1299.45(A)(1) provides that "[o]nly while malpractice liability insurance remains in force, or in the case of a self-insured health care provider, only while the security required by regulations of the board remains undiminished, are the health care provider and his insurer liable to a patient, or his representative, for malpractice to the extent and in the manner specified in this Part." The plaintiff contends that the use of "premium" and "malpractice liability insurance" indicates that a "fronting" policy as described by Ms. Lienemann is insufficient to qualify under the statute.
The plaintiff correctly states that the limiting provisions of the Medical Malpractice Act are to be strictly construed as they are in derogation of the rights of tort victims. See Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00); 758 So.2d 116. However, we do not conclude that the trial court was incorrect in granting the partial summary judgment in favor of the defendants. The documents submitted on the motions for partial summary judgment indicate that the policy issued by St. Paul to HealthTrust, Inc. is malpractice liability insurance within the *1159 terms of the statute. A Certificate of Enrollment is contained in the record whereby the PCF acknowledges that at both the time of the treatment at Dauterive Hospital and the commencement of the action, St. Paul provided a "claims made" policy for the hospital.[5] The affidavit of the Malpractice Insurance Director for the Patient's Compensation Fund Oversight Board is attached, whereby she confirms the existence of professional liability coverage during this time period.[6] Reference to the text of the St. Paul policy reveals that it contains the assurances commonly found in a liability policy. The addition of the indemnity agreement and the type of contractual provision entered into between HealthTrust, Inc. and St. Paul do not detract from St. Paul's obligation to service the policy. It requires performance to a claimant just as it would if the "fronting" provisions contained in the indemnity agreement were not attached. Ms. Lienemann's testimony confirmed this in her deposition, wherein she responded to defense counsel's questioning as follows:
Q. Exhibits 2 and 3 which are the policy and then that one endorsement for Louisiana, was it St. Paul's intention to issue a policy of insurance on behalf of HealthTrust?
A. Yes, it was.
Q. Was it St. Paul's intention that third persons such as Mr. Darrell Scott would look to that policy to define the insurance coverage being provided to a particular named insured or endorsed insured?
A. Yes.
Q. And St. Paul had a mechanism set up by which it could obtain reimbursements in any amount that it paid to those third persons; correct?
A. That is correct.
Q. In fact, that this was referred to in your industry as a fronting policy does not change the character of this in terms of it being an insurance policy, does it?
A. No, it does not.
Finding that the policy is sufficient under the statute, we find no error in the trial court's determination to grant the motion for partial summary judgment in favor of Dauterive, concluding that the hospital was a qualified health care provider.
Jury Charges
The plaintiff contests the jury instructions provided by the trial court, asserting *1160 that they resulted in an incorrect verdict. He argues an incorrect verdict resulted because several charges he requested were not included in the trial court's instructions. He also asserts that an incorrect and misleading instruction was provided as to causation. Due to these alleged errors, he contends that the trial court should have granted a new trial and, on appeal, this court should invalidate the jury's finding and perform a de novo review.
In consideration of this argument, we are mindful of the standard of review for jury instructions. In Nicholas v. Allstate Ins. Co., 99-2522, p. 8-9 (La.8/31/00); 765 So.2d 1017, 1023, the Louisiana Supreme Court explained:
Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Melancon v. Sunshine Const., Inc., 97-1167 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011. The basis for this rule of law is that trial courts are given broad discretion in formulating jury instructions and it is well accepted that a trial court judgment will not be reversed so long as the charge correctly states the substance of the law. United States v. L'Hoste, 609 F.2d 796, 805 (5 Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). However, when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983). In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if they adequately provide the correct principles of law as applied to the issued [sic] framed in the pleadings and evidence and whether they adequately guided the jury in its deliberation. Kaplan v. Missouri-Pacific R.R. Co., 409 So.2d 298, 304-05 (La.App. 3 Cir. 1981). Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Brown v. White, 405 So.2d 555, 560 (La.App. 4 Cir.1981), aff'd, 430 So.2d 16 (La.1982).
First, the plaintiff asserts that the jury's determination that EMTALA was not violated was due in part to the trial court's failure to include a jury charge he requested, which indicated that a hospital is liable for a doctor's violation of EMTALA.[7] The trial court instructed the jury as to EMTALA as follows:
Let me say that we have a statute here you've heard called EMTALA. It reads in part "... for the examination and treatment for emergency medical conditions." The medical screening requirement in the case of a hospital that has a hospital emergency department, if any individual comes to the emergency department and a request is made for the individual'son the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency room to determine whether or not an emergency medical condition exits [sic].
Any individual who suffers personal harm as a direct result of a participating *1161 hospital's violation of a requirement of this section in a civil action, the participating hospital obtained those damages available to personal injury under the laws of the state in which the hospital is located, and such equitable relief as is appropriate.
An emergency conditions [sic] means the following: a medical condition manifesting itself by acute symptoms of sufficient severity such, and that includes severe pain, such that the absence of immediate attention could reasonably be expected to result in one, placing the health of the individual in serious jeopardy; two, serious impairment to bodily function; or three, serious dysfunction of any bodily organ or party.
A participating hospital may not delay provisions of an appropriate medical screening examination required under Sub-section A of this section or further medical examination and treatment requirement under Sub-section B of this section, in order to inquire about the individual[']s method of payment or insurance status.
A violation of a statute, code, ordinance, or government regulation, may not be negligence where the action which violated the statute was not unreasonable under all the circumstances, or was not a legal cause of the action.
Reference to EMTALA, provided at 42 U.S.C. § 1395dd, indicates that the above instructions are essentially a verbatim rendering of the statute. Furthermore, when the jury inquired as to EMTALA requirements, the trial court delivered a redacted version of the statute for the jury's review and did so with consent of counsel.
Although the plaintiff preferred a specific instruction regarding the hospital's liability under the statute for Dr. Castro's fault, we do not conclude that the trial court was required to provide such specific instruction. Rather, the trial court instructed the jury by providing the text of the statute, which broadly requires that the hospital "must provide for an appropriate medical screening examination within the capability of the hospital's emergency department...." 42 U.S.C. § 1395dd(a). While no particular directive was provided regarding the hospital's responsibility for any failure of Dr. Castro, the jury was free to find in this regard as the trial court did not provide any instruction which would have precluded such a finding. Our review of the instruction reveals no erroneous instruction.
Similarly, the plaintiff contends that the trial court was required to provide specific instructions regarding the apparent authority doctrine or control. In his brief to this court, the plaintiff states that "[t]here were no signs in the hospital emergency room ... stating that it did not employ the doctors, who worked there." He also points out that Dr. Castro testified that patients likely believed that he was an employee of the hospital and that the hospital billboards advised passersby to "Trust the Doctors you Know." These factors, the plaintiff contends, require instruction as to apparent authority and control.
In reviewing this portion of the jury charge, we observe that the jury was not provided with instruction regarding employee/independent contractor status. Neither was the jury informed of the settlement with Dr. Castro and Coastal. The jury was simply informed that Dr. Castro was not a defendant. Evidence was presented as to the fault, or lack thereof, of all actors. Additionally, defendants presented evidence regarding Dr. Castro's employment with Coastal and his performance as an emergency room physician at Dauterive. The defendants also presented expert testimony regarding hospital administration and the independent contractor *1162 status of emergency room doctors in general.
While there was no instruction given as to apparent authority and control, or independent contractor/employee classification, the jury was instructed: "You must bear in mind that a corporation can only act through officers, employees or agents. An employer is liable for the negligent acts of its employees while they are acting in the course and scope of their employment." Additionally, the jury was instructed that: "A hospital is also responsible for the negligence of its employees under the doctrine of respondeat superior." Simply put, the case proceeded as an independent contractor matter with little evidence on the question of whether Dr. Castro was an employee of the hospital. In the event the jury found Dauterive liable, the verdict sheet required apportionment of fault between Dauterive and Dr. Castro. Given the weight of the evidence presented to the jury, we find no error in the refusal to instruct as to apparent authority or control or that any such error would have probably contributed to the verdict, requiring that it be set aside.
Next, the plaintiff objects to the trial court's instruction on causation. The trial court instructed the jury as follows:
With respect to the issues in this case, the burden of proof rests upon the party who asserts the affirmative of an issue. For example: should the plaintiff assert that the defendant is negligent, the plaintiff has the burden of proving this. On the other hand, should the defendant assert that the plaintiff's injuries are caused by plaintiff's own negligence or the plaintiff's negligence was a contributing cause of the accident, then the defendant bears the burden of that proof.
Now, there are some presumptions that are applied by law. If you find that the plaintiff was in good health before the accident but after the accident or the event in this case, the plaintiff had an injury and there is a reasonable possibility that the accident caused the injury, then the law presumes that the accident caused the injury.
....
A required element of plaintiff's case under any theory of law is that plaintiff's damages be caused by the defendant. A defendant is the legal cause of plaintiff's damages if: the conduct of the defendant is a cause-in-fact of those damages, and secondly, if the damages are within the scope of risk created by the defendant's duty.
To be a cause-in-fact, the conduct of the defendant must be a substantial factor in causing damage. You will first consider what, if any, conduct of the defendant falls below the standard which the law imposes upon him, or it; you must ask whether plaintiff would have suffered damages "but for" this conduct. If plaintiff probably would have suffered injuries regardless of the defendant's conduct, then you must conclude that the injuries were not caused-in-fact by the defendant. If, on the other hand, plaintiff would not have suffered in the absence of defendant's conduct, then you must conclude that defendant did not play a part in plaintiff's injury.
If you find that the defendant's conduct was the cause of plaintiff's injuries, you must determine whether that injury was within the scope of the risks encompassed by defendant's duty. Put another way, you must determine whether the duty which defendant breached was designed to prevent the type of harm that actually occurred. If you find the duty was designed to protect plaintiff from some other harm, or that the duty was designed to protect some other potential victim, then you must find that plaintiff's *1163 injuries were not within the scope of the risk of defendant's duty, and you must find that defendant was not the legal cause of plaintiff's injuries.
In Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1400 (La.3/23/01); 782 So.2d 606, the Louisiana Supreme Court explained that the cause-in-fact element of the duty/risk analysis usually involves a "but for" inquiry. In the event of concurrent causes of an accident, however, the supreme court has found the appropriate inquiry to be whether the conduct complained of was a "substantial factor" in bringing about the accident. Id.
As can be seen above, the trial court instructed the jury as to causation with statements regarding both the "substantial factor" and the "but for" inquiries. The plaintiff contends that inclusion of the "but for" information caused confusion. While the trial court is required to correctly advise the jury of the correct legal principles, it is not required to use the specific wording preferred by the parties. Gourley v. Prudential Property Ins., 98-0934 (La.App. 1 Cir. 5/14/99); 734 So.2d 940, writ denied, 99-1777 (La.10/8/99); 750 So.2d 969. As can be seen above, the jury was advised of the substantial factor test and we do not find that the inclusion of the "but for" information "misled the jury to the extent that it was prevented from dispensing justice." Nicholas, 99-2522, p. 8; 765 So.2d at 1023.
Neither do we find error in the instructions insofar as they did not include the plaintiff's requested charge on the "single indivisible injury rule."[8] The trial court instructed the jury as to fault as follows:
The law requires that you divide responsibility by assigning percentages of fault. If you are convinced by the evidence that the damages were caused solely by one party's substandard conduct or responsibility, you can return a verdict, and I'm going to give that form to one of you, by assigning 100% to the responsible party. You may assign varying percentages to various parties in this case too, but they must total 100%. In making these determinations, you should consider both the nature of the conduct of each party at fault, if at fault, and the extent of the causal relation between conduct and the damages claimed.
Given the plaintiff's continued urging that the plaintiff's injury was caused in two parts, i.e., the initial fight produced the injury to the brain, but the delay in diagnosis/treatment caused aggravation of the damage, we find no error in the trial court's above instruction regarding apportionment of fault.
Having considered the jury instructions, we find no merit in the plaintiff's arguments.
Motion in Limine
At the time of trial, the defendants filed a Motion in Limine to Exclude Evidence of Future Medical Expenses. This motion referenced the plaintiff's settlement with Dr. Castro, Coastal, Coastal's insurer, and the PCF, among others. Included in that settlement was a recognition that the plaintiff's claim for future medicals was compromised, settled, and resolved. As PCF's responsibility for the future medicals has been acknowledged, and satisfied *1164 by the settlement, the defendants argued, there should be no evidence of the future medicals permitted at trial. The trial court agreed, finding that the claim for future medicals had been satisfied and that the plaintiff's attempt to recover future medical expenses under EMTALA or under claims not covered by the Medical Malpractice Act would permit double recovery. The defendants point to the Louisiana Supreme Court's opinion in Gagnard v. Baldridge, 612 So.2d 732 (La.1993), for its discussion regarding the prohibition against requiring a tortfeasor to pay twice for the same elements of damages. The Supreme Court noted that this type of double recovery is in the nature of a punitive damage, which must be provided for by legislation.
The plaintiff questions the determination, pointing out that, although the PCF was released in the settlement, all rights were reserved to proceed against Dauterive and its insurer. He contends that the satisfaction of the future medical expenses under the Medical Malpractice Act does not bar his recovery for future medical expenses under EMTALA or torts not arising under the Medical Malpractice Act.
In review of a ruling on a motion in limine, we are mindful that a trial court has great discretion in its consideration of the motion. See Furlough v. Union Pacific R.R. Co., 33,658 (La.App. 2 Cir. 8/31/00); 766 So.2d 751, writ denied, 00-2929 (La.1/12/01); 781 So.2d 556. See e.g., Heller v. Nobel Ins. Group, 00-0261 (La.2/2/00); 753 So.2d 841. The transcript of the hearing indicates that, with regard to the extent of the settlement for future medical expenses, the plaintiff argued:
[W]hat we've settled is ... if it's the PCF's liability for future medical if the Medical Malpractice Act applies. We did not settle the claims for EMTALA for future medical, and we did not settle the malpractice claims which may not be covered by the Medical Malpractice Act. So, I would say that if there's anything that they may be entitled to, it would be a credit and not as a total release.
The trial court disagreed, finding that the release of PCF for future medical expenses released their recovery under alternative theories of EMTALA and claims not arising under the Medical Malpractice Act. The trial court referenced Gagnard, 612 So.2d 732, stating that it found the case prohibitive of "double recovery for the same item of damage." The trial court concluded that with regard to the settlement, "we've settled away future medicals, the future element." Accordingly, the motion in limine was granted, with specific evidence of future medical expenses excluded.
The plaintiff appeals this ruling, asserting again that future medical expenses should be recoverable under EMTALA and claims not arising under the Medical Malpractice Act. On this ground, we find no abuse of discretion in the trial court's granting of the motion in limine due to the supreme court's prohibition of double recovery in Gagnard. What is unclear from the record is whether consideration was given to Dauterive's exposure to $100,000 in damages in the event it was found liable for malpractice arising under the Medical Malpractice Act. See La.R.S. 40:1299.42(B)(2). While the settlement released PCF for future medicals, rights were reserved against Dauterive. In any event, the plaintiff did not pursue arguments in this regard, possibly due to the fact that if liability was imposed under the Medical Malpractice Act, evidence was presented as to general damages and lost wages which could have exceeded the $100,000 statutory limit. See La.R.S. 40:1299.42(B)(2). Furthermore, even if the trial court abused its discretion due to this possibility, any such error would not now require correction due to the jury's findings *1165 on the merits, and our affirmation of those determinations.
Liability
The plaintiff also contests the jury's denial of the EMTALA, credentialing, and gross negligence claims.[9] Due to these alleged errors, the plaintiff asserts that the trial court erred in denying his motion for new trial. He contends that, on appeal, it is appropriate for this court to vacate the jury verdict, perform a de novo review of the record, and enter judgment in his favor.
In our review of the factual findings of the jury, we observe that a factfinder's verdict may only be reversed if the record does not contain a reasonable factual basis for the verdict and, based on the record, it is concluded that the verdict is manifestly erroneous. Dept. of Transp. v. Schwegmann Expressway, 95-1261 (La.3/1/96); 669 So.2d 1172.
EMTALA
With regard to the EMTALA claim, the plaintiff contends simply that Dauterive failed to provide a proper screening as is required by the statute. He contends that, in particular, the failure to provide the CT scan, when the circumstances indicated it was required, was inadequate screening. This decision, he argues in his brief, was "an economic decision, not a medical decision." (Footnote omitted.)
In Spradlin, 98-1977; 758 So.2d 116, the Louisiana Supreme Court reviewed the creation of EMTALA noting that it was enacted in 1986, due to concern that hospitals were "dumping" uninsured patients or those with the inability to pay by refusing to provide services to persons with emergency situations or by transferring those patients to another hospital before the emergency condition was stabilized. The supreme court observed that through the statute, 42 U.S.C. § 1395dd, Congress "narrowly defined the conduct required of hospitals when an individual requests examination or treatment at the emergency department." Id. at p. 8; 121. The statute establishes two types of "dumping" claims: "(1) failure to conduct an appropriate medical screening examination to determine the existence of an emergency medical condition, and (2) failure to stabilize the emergency condition or to provide an appropriate transfer." Id. at p. 9; 121. It is the first type of claim the plaintiff pursued in this matter.[10]
*1166 The supreme court observed that EMTALA has created a cause of action that is to be considered "separate and distinct from, and not duplicative of, state malpractice causes of action." Spradlin, 98-1977, p. 9; 758 So.2d at 121. Although the claims are distinct, a malpractice claim and a dumping claim may, at times, overlap. Id. See also Coleman v. Deno, 01-1517, 01-1519, 01-1521 (La.1/25/02); 813 So.2d 303. Insofar as the screening claim is concerned, a plaintiff must demonstrate that the treatment rendered at the hospital differed from the treatment received by those who typically are cared for at the facility. Collins v. State ex rel. Louisiana Health Care Authority, 99-2307, 99-2308 (La.App. 4 Cir. 7/12/00); 774 So.2d 167, writ denied, 00-2633 (La.11/17/00); 775 So.2d 439. Furthermore, the required "`appropriate medical screening examination is not judged by its proficiency in accurately diagnosing the patient's illness, but rather by whether it was performed equitably in comparison to other patients with similar symptoms.'" Id. at p. 5; 171 (quoting Marshall v. East Carroll Parish, 134 F.3d 319, 322 (5th Cir.1998)).
Our review of the evidence presented by the plaintiff reveals no evidence requiring a finding that Dauterive failed to provide an adequate screening. While, in the end, more extensive testing and observation may have proved beneficial, the jury was aware that the plaintiff presented at the hospital, smelling of alcohol after having been in a bar fight. The degree of lethargy while at the hospital, of importance in deciding whether a CT scan is appropriate, was in dispute at trial. The jury was not required to find that the plaintiff was anything other "alert" or "awake" as noted on the hospital record. In its role as a factfinder, testimony to the contrary could have been discounted. In sum, the jury was not required to accept that the plaintiff's observable condition was of such a degree as to require the CT scan. While at the hospital, he was attended to by both a nurse and a physician and his laceration was sutured. He was delivered for x-rays, which the hospital attempted to perform. The failure to perform the CT scan may have arguably been malpractice, as could have been the failure to complete the entire series of x-rays, but there is no indication that the failure to do so under the circumstances is necessarily an EMTALA violation. While medical judgment may have been found to dictate a higher level of care, there is no indication that the plaintiff was treated differently than any other patient who presented at the hospital with similar symptoms.[11] In fact, the jury was aware of the testimony of Kay Colby, Chief Nursing Officer at Dauterive and the hospital's former Director of Quality and Risk Management, who denied the existence of any policy to refuse any service to any patient in its emergency room once it is ordered by a doctor. In sum, even in the presence of evidence of negligent care (recall the defendant also asserted malpractice) no evidence presented was so compelling as to prevent the jury from rejecting the plaintiff's argument that the hospital rendered an insufficient screening under standards of EMTALA, 42 U.S.C. § 1395dd.
Credentialing
The plaintiff also argued that Dauterive was negligent in failing to properly credential Dr. Castro as an emergency room physician. The evidence indicated that Dr. Castro, a Board Certified Family Practitioner, was credentialed by the hospital for family practice, not emergency *1167 room medicine. In support of his contention that this failure to credential Dr. Castro in emergency room medicine was negligent, the plaintiff offered the testimony of Dr. Richard Bucci, accepted by the trial court as an expert in emergency medicine. Dr. Bucci stated that in 1994, it was the practice to credential physicians in emergency medicine. He also explained that, although not every physician who works in an emergency room is Board Certified in emergency medicine, one would expect the physician to have some training in emergency medicine. Due to this testimony, the plaintiff contends, the jury erred in failing to find that Dr. Castro was properly credentialed.
As in any negligence case, the burden is on the plaintiff to establish the standard of care. See Thomas v. Southwest Louisiana Hosp. Ass'n, 02-0645 (La.App. 3 Cir. 12/11/02); 833 So.2d 548. The jury was not required to accept that the plaintiff's evidence established that standard of care. In Natchitoches Parish Port Com'n v. Deblieux & Kelley, Inc., 99-313, 99-314, 99-315, p. 18 (La.App. 3 Cir. 3/22/00); 760 So.2d 393, 404, writ denied, 00-1121 (La.6/2/00); 763 So.2d 601, a panel of this court explained that "expert witness testimony is not conclusive and ... the opinions expressed by experts are generally regarded as advisory in nature. As such, they are not binding on the trier of fact."
The jury was free to conclude that Dr. Bucci's testimony as to the standard for staffing emergency rooms did not reflect the standard applicable to Dauterive in 1994.[12] Accordingly, we find no error in the determination that the plaintiff failed to prove that Dauterive improperly credentialed Dr. Castro.
Gross Negligence
The plaintiff argued that Dauterive was liable for what he considers to be the gross negligence of Dr. Castro. His argument in his brief to this court in this regard is as follows: "The conduct of Dr. Castro clearly was grossly negligent. Dr. Castro was told at least twice by Bonnie [that] Darrell's condition was not due to his being drunk, but he callously ignored her. Ignoring what is obvious is gross negligence." In Ambrose v. New Orleans Police Amb. Serv., 93-3099, 93-3110, 93-3112, p. 5-6 (La.7/5/94); 639 So.2d 216, 219-20 (citations omitted), the Louisiana Supreme Court explained as follows with regard to "gross negligence," stating:
Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the "want of even slight care and diligence" and the "want of that diligence which even careless men are accustomed to exercise." Gross negligence has also been termed the "entire absence of care" and the "utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others." Additionally, gross negligence has been described as an "extreme departure from ordinary care or the want of even scant care." "There is often no clear distinction between such [willful, wanton, or reckless] conduct and `gross' negligence, and the two have tended to merge and take on the same meaning." Gross negligence, therefore, has a well-defined legal meaning distinctly separate, *1168 and different, from ordinary negligence.
Our review of the record reveals no evidence requiring the jury to have concluded that the plaintiff was the victim of gross negligence at the hospital. In fact, the state of the evidence did not even require the jury to find negligence on the part of Dauterive, let alone gross negligence.
In sum, we find the above conclusions of the jury to be supported by the record. The associated factual and credibility determinations are best left to the trier of fact. Finding no manifest error, we do not reverse the findings as the plaintiff asserts that we should. Similarly, and due to this finding, we also find no merit in the plaintiff's assertion that the trial court erred in failing to grant a new trial. Neither Article 1972 nor Article 1973 of the Louisiana Code of Civil Procedure required the trial court to grant the plaintiff's motion for new trial.
Exclusion of Evidence Regarding Tax Burden
In his final assignment of error, the plaintiff contends that the trial court erred in excluding evidence of what he contended would be an increased tax burden in the event he was awarded a lump sum award for lost earning capacity. As the resolution of the issues above renders this issue moot, we do not address it.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the plaintiff, Darrell Scott.
AFFIRMED.
PETERS, J., concurs in the result.
JUDGMENT ON MOTION TO RECUSE
The appellant, Darrell Scott, has filed a motion to recuse the panel assigned to hear his appeal and requests that the court hear his motion en banc. The panel he seeks to recuse rendered an opinion affirming the trial court judgment rejecting his claims for damages. The basis of the appellant's motion to recuse is that, because the panel rendered its opinion rejecting his claims, no member of the panel should consider his motion for rehearing.
As stated in Rapides Parish Police Jury v. Grant Parish Police Jury, 01-2293 (La.11/16/01), 801 So.2d 1069, "[a] hearing on a motion to recuse is required only if the moving party sets forth a valid ground." In the matter now before us, the appellant has set forth no valid reason why this panel should be recused other than the fact that the panel ruled against him in his appeal. Therefore, we reject his motion to recuse the instant panel, and do so without a hearing. Id.
AMY, J., dissents and assigns written reasons.
DISSENT ON MOTION TO RECUSE
AMY, J., dissenting.
I agree with the majority that the motion to recuse lacks merit. However, I dissent for procedural reasons. I conclude that the motion to recuse is controlled by La.Code Civ.P. art. 160, which relates to the recusation of court of appeal judges. Article 160 provides, in part:
When a written motion is filed to recuse a judge of a court of appeal, he may recuse himself or the motion shall be heard by the other judges on the panel to which the cause is assigned, or by all judges of the court, except the judge sought to be recused, sitting en banc.
*1169 In this case, the plaintiff, by written motion, attempts to recuse the entire panel as to the application for rehearing. In my opinion, the above article provides for and limits an appellate panel to two options when presented with such a motion to recuse. First, the panel may, if appropriate, grant the motion to recuse. Alternatively, the panel must refer the motion to the remainder of the judges of the court, sitting en banc, for consideration. As I have reviewed the motion and find it meritless, I do not find self-recusal appropriate. Therefore, I conclude that the only remaining option is for consideration of the motion to recuse by the remainder of the court, sitting en banc. Accordingly, I respectfully dissent from the majority's denial of the motion to recuse as I would refer the recusal motion to the remainder of the court for en banc consideration under article 160.
NOTES
[1] Ms. Moore testified that at the time of her examination of the plaintiff, she was a licensed practical nurse.
[2] The record indicates that one of the x-rays requires the patient to open his mouth so that the top vertebrae can be seen.
[3] Although Bonnie McFarland was originally a plaintiff, pursuant to an April 1997 consent judgment, her claims were dismissed with prejudice.
[4] La.R.S. 40:1299.42, entitled "Limitation of Recovery," provides the "cap" of the Medical Malpractice Act, which the plaintiff argues is inapplicable. It also contains the qualification requirements. The statute provides, in part:
A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
(3) For self-insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.
B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.
(3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient's compensation fund pursuant to the provisions of R.S. 40:1299.44(C).
(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.
....
E. (1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money or represented by irrevocable letters of credit, federally insured certificates of deposit, bonds, securities, cash values of insurance, or any other security approved by the board. In the event any portion of said amount is seized pursuant to the judicial process, the self-insured health care provider shall have five days to deposit with the board the amounts so seized. The health care provider's failure to timely post said amounts with the board shall terminate his enrollment in the Patient's Compensation Fund.
[5] The certificate further states that "It is further certified that professional liability coverage for ONE HUNDRED THOUSAND $100,000.00 Dollars through the above named insurance company, acknowledges primary responsibility for the indicated period(s)."
[6] The affidavit contains the Director's statement that Dauterive Hospital was a qualified healthcare provider during the periods listed on the certificate as the hospital "submitted the requisite proof of primary professional liability insurance coverage, and having paid the requisite surcharge for excess coverage by the Patient's Compensation Fund." She further stated:
(3) According to the records on file with the Patients' Compensation Fund, DAUTERIVE HOSPITAL also purchased additional coverage affording professional liability insurance for occurrences prior to September 1, 1995 and paid an additional surcharge to the Louisiana Patients' Compensation Fund to preserve DAUTERIVE HOSPITAL's status as a "qualified health care provider" for occurrences at DAUTERIVE HOSPITAL prior to September 1, 1995.
(4) By virtue of said coverage and the surcharges paid on behalf of DAUTERIVE HOSPITAL, pursuant to La.R.S. 40:1299.42, DAUTERIVE HOSPITAL was a qualified healthcare provider under the Louisiana Medical Malpractice Act [La.R.S. 40:1299.41 et seq.] with regard to all occurrences at that facility prior to September 1, 1995.
[7] The plaintiff's requested "Charge No. 45", which was not given, states: "a physician [who treats patients in fulfillment of their contractual duties with the hospital] is also a violation by the hospital. [sic]" The plaintiff draws this requested verdict from Burditt v. Dep't of Health and Human Services, 934 F.2d 1362 (5th Cir.1991).
[8] The plaintiff requested the jury instructions include the following:
[Where] ... "two or more persons acting independently are guilty of consecutive acts of negligence closely related in point of time, and cause damage to another under circumstances where the damage is indivisible, i.e., it is not reasonably possible to make a division of the damage caused by the separate acts of negligence, and negligent actors are jointly and severally liable."
[9] Although the plaintiff does not specifically argue that the jury's finding as to the lack of causation was manifestly erroneous, he repeatedly references causation throughout the brief, asserting that this court, in a de novo review, should find causation. Although we do not perform a de novo review and this issue has not been specifically preserved for review, we do observe that, while the jury found a breach of the standard of care, the jury was not required to find causation of the plaintiff's injuries. Although the plaintiff's central claim of negligence against the hospital was inadequate nursing care, the plaintiff's manner of presentation was to point to all conduct as insufficient in some way. The jury could have very well accepted that some action or inaction breached the standard of care, but that a deficiency in one of these areas was not responsible for the defendant's release without more thorough testing.
[10] With regard to this claim, 42 U.S.C. § 1395dd provides:
(a) Medical screening requirement
In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.
[11] The plaintiff presented the records of another patient admitted at the hospital who received more detailed care. However, the other patient arrived at the hospital with congestive heart failure, manifesting different symptoms than those of the plaintiff.
[12] Furthermore, the defendant presented the testimony of Theodore Badger, Jr., accepted as an expert in Hospital Administration, who at the time of trial was employed as the Chief Executive Officer of Beauregard Memorial Hospital in DeRidder, Louisiana. Mr. Badger testified regarding the general credentialing process and explained that his understanding of the credentialing process at Dauterive, as explained by Kay Colby, was consistent with his experience with credentialing. He also denied that the emergency room physicians at his hospital were all Board Certified in emergency medicine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902747/ | Appeal by the defendant from a judgment of the County Court, Suffolk County (Floyd, J.), rendered November 14, 1986, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The showup procedure utilized here was not for purposes of identification but was "merely confirmatory” since the confidential informant knew the defendant prior to the commission of the offense and the police officer had ample opportunity to observe the defendant during the commission of the crime (see, People v Johnson, 124 AD2d 748, lv denied 69 NY2d 713; People v Fleming, 109 AD2d 848, 849). Moreover, the dangers of misidentification are minimal where law enforcement offi*847cials, trained in making careful observations, view the defendant in a showup procedure for purposes of confirming that the correct person has been apprehended (see, (People v Morales, 37 NY2d 262; People v Carolina, 112 AD2d 244, 245, lv denied 66 NY2d 917).
In addition, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). Contrary to the defendant’s contentions, the identification testimony of the two officers and the confidential informant was overwhelming. Whether the informant’s identification testimony was credible and the weight it should be accorded was primarily for the court as the trier of fact to determine since it saw and heard the witness (see, People v Gaimari, 176 NY 84, 94). The record amply supports the identification testimony of the informant and any issues of credibility were properly resolved in the People’s favor (see, People v Carolina, supra, at 245; see, People v Garafolo, 44 AD2d 86, 88).
We have considered the defendant’s remaining contentions, including his claim that the sentence was excessive, 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/5902749/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered September 24, 1986, convicting him of the criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
The testimony of the undercover officer was heard in the cleared and closed courtroom. No hearing on the issue of closure was conducted prior thereto. "[N]o closing can be tolerated that is not preceded by an inquiry careful enough to assure that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons” (People v Jones, 47 NY2d 409, 414-415, cert denied 444 US 946). Such a closing is per se reversible error. The ex post facto determination by the Trial Judge that the closure was necessary, without having first inquired of the undercover officer to ascertain that preservation of his anonymity was necessary to protect his safety or utility to the police department, does not suffice to justify the prior closure (see, People v Roberto, 67 AD2d 687; see also, People v Cuevas, 50 NY2d 1022), particularly in light of the failure to provide the defense counsel with an opportunity to examine the undercover officer or even to be heard prior to a decision to close the courtroom.
We further note that the prosecutrix overstepped the *849bounds of appropriate rhetorical commentary. The prosecutrix’s mischaracterization of the defendant’s testimony, which was intended to convince the jury that the defendant had admitted his guilt when he had not, constitutes a gross distortion, the magnitude of which was highly prejudicial (see, People v Ashwal, 39 NY2d 105, 109-110; People v La Rosa, 112 AD2d 954; see also, People v Figueroa, 80 AD2d 520, 522). Mollen, P. J., Kunzeman, Rubin and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1721560/ | 555 N.W.2d 505 (1996)
219 Mich. App. 173
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
John Walter PRELESNIK, Defendant-Appellant.
Docket No. 179370.
Court of Appeals of Michigan.
Submitted November 22, 1995, at Grand Rapids.
Decided September 27, 1996, at 9:30 a.m.
Released for Publication November 22, 1996.
*506 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Larry W. Hachman, Prosecuting Attorney, and Herbert P. Tanner, Jr., Assistant Prosecuting Attorney, for People.
Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C. by Bernard F. Finn, Lansing, for defendant-appellant.
Before SAAD, P.J., and MARILYN J. KELLY and M.J. MATUZAK,[*] JJ.
MARILYN J. KELLY, Judge.
Defendant appeals by leave granted from an order reinstating a criminal charge of operating a motor vehicle while under the influence of intoxicating liquor. M.C.L. § 257.625; M.S.A. § 9.2325. The district court had earlier dismissed the charge after finding that defendant was not afforded an opportunity to have an independent alcohol content test conducted. M.C.L. § 257.625a(6)(d); M.S.A. § 9.2325(1)(6)(d). Defendant argues that the circuit court erred in reinstating the charge. We reverse and remand.
I
On December 9, 1993, at approximately 10:44 p.m., police officers stopped defendant for erratic driving. They arrested him after *507 he failed various field sobriety tests. Upon arrival at the police station at approximately 11:35 p.m., defendant was read his rights, including his right to have an independent alcohol test. He submitted to two breathalyzer tests, with a result of 0.14 percent alcohol content. He was then placed in a cell with other prisoners. Defendant testified that, while in the cell, he realized that he had a right to an independent alcohol test. He attempted to get the attention of the jailers, but did so quietly so that the other prisoners would not notice his efforts. Defendant was the warden of a nearby prison, and he feared that he would be recognized by his cellmates.
The deputy on duty testified he could see defendant's cell at all times. While ordinary conversation could not be heard, the deputies could hear if a prisoner yelled or tapped on the cell glass. The deputy did not notice defendant attempting to contact the officers, either by word or deed.
When another prisoner was given a telephone to place a call, defendant obtained the phone and called his wife. He told her to call the jail and demand that he be given an independent alcohol test. She did, but the deputies refused to take defendant for the test. In the commanding sergeant's opinion, the request was untimely. The parties stipulated that defendant had telephoned his wife at 2:20 a.m., and that the officers informed defendant that they were refusing to take him for the test at 2:30 a.m.
The district court dismissed the charge against defendant, ruling that defendant's request for an independent test at 2:20 a.m. had not been unreasonable. The results could have been relevant. The court stated:
If the result [of the independent test] was .35, it would have been relevant. If the result was zero, with a result of .14 at the timein the possession of the police, there arethere is expert testimony that would have came in and made that zero very relevant.
The point is, Mr. Finn, in terms of his major premise, is right on. The point isthis two hour hearing that we've had makes a great record, if you want to argue that the defendant was laying in the weeds. And that's where I thought [the prosecutor] was going, because that's the only way he can ever prevail in this case, would be by showing that this is a case where a guy waited beyond the pale of reason to create a technicality. [The prosecutor] is not even arguing that. He's making me feel foolish for suspecting that. If he's not going to argue it, and I'm merely going to suspect it, I'm sure as hell not going to find it.
What I've got here is a 2:20 request, four hours, it's arguable. I'm not saying it would have gotten the guy off, I'm saying that it would have been relevant. I'm saying it would have beenit would have been a close question for me to exclude it after argument from lawyers. If it's arguably relevant, it sure isn't to be peremptorily barred by a police officer at 2:00 in the morning because he doesn't like the guy. And so I'm going to dismiss the case.
The prosecutor appealed to the circuit court, arguing that the remedy for a statutory violation would ordinarily be suppression of the evidence. Dismissal of the case was appropriate only when the defendant's due process rights under the constitution had been violated. The prosecutor reasoned that, because the district court had dismissed the case, the court must have found that the officers' conduct rose to the level of a due process violation. The prosecutor asserted that, under federal authority, a due process violation occurs only when the police act in bad faith.
On the other hand, defendant argued that dismissal was an appropriate remedy, because this statutory violation rose to the level of a due process violation. He alleged that Michigan cases decided under the statute do not require a showing of bad faith.
The circuit court ruled in a written opinion that the present case was controlled by a "due process" opinion found in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). Accordingly, defendant was denied due process only if the police acted in bad faith by denying his request for an independent test. The circuit court found that:
*508 there was no bad faith when the defendant was within 6-8 feet from the police officers after his arrest and waited 2-3 hours to make his request for an independent exam.
The circuit court reversed the dismissal of the charge and remanded for further proceedings. This court granted defendant's application for leave to appeal on December 14, 1994, and the district court has stayed trial pending this appeal.
II
As a preliminary matter, we must delineate the proper standard of review on appeal. Defendant contends that the circuit court's ruling should be reviewed for an abuse of discretion, while the prosecutor contends that the ruling should be reviewed for clear error.
We note that the appropriate standard of review depends upon the context of the case. The abuse of discretion standard is employed when a trial court decides whether test results are admissible at trial. People v. Schwab, 173 Mich.App. 101, 103, 433 N.W.2d 824 (1988). A court's determination that a defendant was not afforded a reasonable opportunity to obtain an independent alcohol test is a factual finding reviewable under the clearly erroneous standard of MCR 2.613(C). Cf. People v. Craun, 159 Mich.App. 564, 568, 406 N.W.2d 884, rev'd on other grounds 429 Mich. 859, 413 N.W.2d 421 (1987). This case does not involve the admissibility of test results, but rather whether defendant was afforded a reasonable opportunity to obtain an independent test. Consequently, we will review the circuit court's decision for clear error. MCR 2.613(C).
III
The trial court relied upon the federal case of Youngblood, supra, for the proposition that defendant was not denied due process, because the police did not act in bad faith. We find Youngblood inapplicable to this case.
In Youngblood, the issue was whether the defendant had been denied due process by the failure of police to preserve potentially useful evidence. The Supreme Court ruled that, absent a showing of bad faith by the police, the destruction of potentially useful evidence did not constitute a due process violation. Id., 488 U.S. at 56-58, 109 S.Ct. at 336-38. The instant case does not involve the preservation of potentially useful evidence, but rather the defendant's statutory right to an independent alcohol test. Accordingly, the circuit court's reliance upon Youngblood was misplaced.
The relevant statute,[1] M.C.L. § 257.625a(6)(d); M.S.A. § 9.2325(1)(6)(d), provides:
A chemical test described in this subsection shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a crime described in section 625c(1). A person who takes a chemical test administered at the request of a peace officer, as provided in this section, shall be given a reasonable opportunity to have a person of his or her own choosing administer 1 of the chemical tests described in this subsection within a reasonable time after his or her detention, and the results of the test are admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. If the person charged is administered a chemical test by a person of his or her own choosing, the person charged is responsible for obtaining a chemical analysis of the test sample.
By enacting M.C.L. § 257.625a(6); M.S.A. § 9.2325(1)(6), the Legislature intended to allow the production and preservation of chemical evidence in an orderly manner. People v. Dicks, 190 Mich.App. 694, 698, 476 N.W.2d 500 (1991). Motorists charged with driving while under the influence of intoxicants are ensured that scientific evidence is not at the sole disposal of the prosecution. Id. at 699, 476 N.W.2d 500.
The relevant inquiry, pursuant to the statutory language, is whether defendant was given a reasonable opportunity (1) to have an independent alcohol content test, (2) performed by a person of his own choosing, (3) *509 within a reasonable time after his detention. The police stopped defendant at approximately 10:44 p.m. Defendant did not express an interest in an independent test until his wife called the police station on his behalf at 2:20 a.m. As such, approximately 3 hours and 45 minutes elapsed between his detention and the request. We find that the length of the delay alone is not dispositive of the question whether the request was timely made.
It should have been determined whether an independent test performed when defendant requested it could have produced relevant evidence about defendant's blood-alcohol level at the time of his arrest. See Schwab, supra; Gard v. Michigan Produce Haulers, 20 Mich.App. 402, 407, 174 N.W.2d 73 (1969). No testimony was heard concerning defendant's body weight, food consumption or other factors which might have contributed to the alcohol elimination rate. Without such testimony, an accurate determination could not have been made regarding the test's relevancy and the reasonableness of the police officers' refusal to allow it.
To hold, as the dissent does, that a 3 hour 45 minute interval is per se an unreasonable delay, would subvert the intent of the statute. Moreover, granting police officers the discretionary authority to determine reasonableness when they and the accused are in an adversarial relationship is fraught with due process problems. It is for the courts, not the police, to determine whether a delay is reasonable and whether blood alcohol test results are relevant.
We reverse the circuit court's order reinstating the charge and remand this matter to the district court for an evidentiary hearing.[2] If defendant was denied the right to an independent chemical test, dismissal of the charges is the appropriate remedy. Dicks, supra at 701, 476 N.W.2d 500. We do not retain jurisdiction.
MATUZAK, J., concurs.
SAAD, Presiding Judge (dissenting).
I respectfully dissent.
Pursuant to M.C.L. § 257.625a(6)(d); M.S.A. § 9.2325(1)(6)(d), the relevant inquiry is whether defendant was given a "reasonable opportunity" to have an independent alcohol-content test performed by a person of his own choosing "within a reasonable time" after his detention. Here, defendant was given a reasonable opportunity to have an independent alcohol-content test, but he did not exercise his right within a reasonable time.
With respect to the reasonableness of the opportunity afforded defendant to obtain an independent test, defendant was advised of his right to such a test shortly after he arrived at the police station, at approximately 11:35 P.M. The trial court found as fact that defendant did not express any interest in an independent test until his wife called the police station on his behalf at 2:20 A.M. Accordingly, approximately two hours and forty-five minutes elapsed between defendant's notification of his right and his request.
We note that this case is distinguishable from prior cases in which the courts have found a violation of the defendant's rights. The police did not fail to read defendant his rights, contrast People v. Koval, 371 Mich. 453, 124 N.W.2d 274 (1963); a test was not denied because of the unavailability of a doctor, contrast People v. Burton, 13 Mich.App. 203, 163 N.W.2d 823 (1968); the police did not attempt to talk defendant out of an independent test, contrast People v. Underwood, 153 Mich.App. 598, 396 N.W.2d 443 (1986); and defendant was not deprived of the choice of who would perform the independent test, contrast People v. Dicks, 190 Mich.App. 694, 476 N.W.2d 500 (1991). Here, defendant had the opportunity, but he simply failed to pursue it when it was available.
The next issue is the reasonableness of the time between defendant's detention and his request for an independent test. As noted in the majority opinion, approximately three hours and forty-five minutes elapsed from the time defendant was first detained to the time he expressed an interest in an independent test. Without establishing a bright-line *510 rule regarding what constitutes a reasonable period, I would hold that an interval of three hours and forty-five minutes is not reasonable. Cf. People v. Schwab, 173 Mich.App. 101, 433 N.W.2d 824 (1988) (where a two-hour delay was held to be unreasonable).
In sum, defendant here waited approximately three hours and forty-five minutes to request an independent alcohol-content test by means of his phone call to his wife. He did not request an independent test when he was arrested, when he was tested by police, when he was booked into jail and notified of his rights, or when he sat in the cell for hours. The opportunity to request an independent test was, by all appearances, open to him, but he sat on his rights. The statutory purpose was met; its frustration came not from the sheriff's denial of an independent test, but by defendant's delay in requesting such a test.[1]
I would affirm the circuit court's decision, although for reasons other than those expressed by the circuit court.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] We apply the version of the statute in effect at the time of the alleged offense. See 1993 P.A. 229. The statute was amended in 1994, with only minor changes.
[2] The district court prematurely concluded that the results would have been relevant without conducting an evidentiary hearing.
[1] I am mindful of the potential difficulties of allowing individual police officers to make the initial determination whether a request for an independent test is timely. However, I need not address that concern here because of the unusually long delay by defendant in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902750/ | Appeal by the defendant from a judgment of the County Court, Orange County (Patsalos, J.), rendered November 22, 1985, convicting him of attempted criminal sale of a controlled substance in the third 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/5902751/ | *431Judgment, Supreme Court, New York County (Robert M. Stolz, J. at dismissal motion; Cassandra M. Mullen, J. at plea and sentencing), rendered March 22, 2011, convicting defendant of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 3 Vs years, unanimously reversed, on the law, the indictment dismissed, and leave granted to the People to apply for an order permitting resubmission of the charges to another grand jury.
On January 4, 2010, defendant was arrested as part of an undercover drug buy and bust operation. Four days later, the People presented to a grand jury evidence of three charges against defendant: criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance on or near school grounds, and resisting arrest. After the presentation, the grand jury failed to muster a vote for indictment or dismissal for any of the charges, but took “no affirmative action” on them. After the prosecutor recalled witnesses for additional testimony, the grand jury voted to indict defendant for resisting arrest, but again took no action on the drug sale charges.
At defendant’s arraignment later that month, the prosecutor stated that she intended to re-present the drug sale charges to another grand jury, but did not seek the court’s authorization for the re-presentation. In February 2010, the prosecutor submitted the drug sale charges to a second grand jury, along with additional counts for defendants’ possession of bags containing cocaine residue and crack pipes. The second grand jury voted to indict defendant for both drug sale charges and the possession charges, and thereafter the two indictments were consolidated.
In April 2010, defendant moved pursuant to CPL 210.20 for an order dismissing the drug sale charges on the ground that, after the first grand jury had failed to vote to indict on those charges, the prosecutor violated CPL 190.75 (3) by re-presenting them to the second grand jury without authorization. The court denied the motion on the ground that its permission was unnecessary where, as here, the first grand jury took no action on the drug charges and the prosecutor did not “withdraw” them before re-presenting.
In January 2011, defendant pleaded guilty to a reduced charge of criminal sale of a controlled substance in the fourth degree, in full satisfaction of the consolidated indictment.
It was error to deny defendant’s motion to dismiss the drug sale counts. Under CPL 190.75 (3), the People cannot re-present *432a charge that a grand jury has dismissed unless the court in its discretion authorizes or directs resubmission. Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75 (3) if the prosecutor “prematurely takes the charge from the grand jury” (People v Credle, 17 NY3d 556, 558 [2011]). In Credle, after the People presented drug charges against the defendant to a grand jury, they unsuccessfully tried to muster sufficient votes to indict or dismiss, and then offered the grand jury the option of voting “no affirmative action” on the charges (id.). After the grand jury accepted that option, the People, without seeking the court’s permission, terminated the proceedings and resubmitted the charges to a second grand jury, which indicted the defendant (id.). The Court of Appeals dismissed the drug charges, explaining that when a prosecutor terminates a grand jury’s deliberations before it has disposed of the matter in one of the five ways permitted by CPL 190.60, the critical question as to whether a dismissal was effected was “ ‘the extent to which the [g]rand Q]ury considered the evidence and the charge’ ” (17 NY3d at 560, quoting People v Wilkins, 68 NY2d 269, 274 [1986]). In Credle, the prosecutor terminated the first grand jury proceedings after it had made a complete presentation and directed the jury to deliberate over the charges, and accordingly the proceedings were deemed to amount to a dismissal (17 NY3d at 560).
The People’s attempt to distinguish this case from Credle on the ground that here the prosecutor did not formally “withdraw” the drug charges against defendant from the first grand jury, but instead allowed its term to expire, is unpersuasive. The distinction has no bearing on whether the charges were effectively dismissed by the grand jury’s failure to indict after a full presentation of the case.
Defendant’s guilty plea does not preclude his claim, because the prosecution’s noncompliance with CPL 190.75 (3) was a jurisdictional defect (see People v Hansen, 95 NY2d 227, 230-232 [2000] [holding a defendant’s “right to be prosecuted on a jurisdictionally valid indictment survive(s) (a) guilty plea”]). The prosecution’s failure to adhere to the statutory procedure “affect[ed] the jurisdiction of the court, and as such appellate review thereof was neither waived nor forfeited by the defendant” (People v Jackson, 212 AD2d 732, 732 [2d Dept 1995], affd 87 NY2d 782 [1996] [where the prosecutor, without first obtaining the court’s authorization pursuant to CPL 210.20 (6) (b), resubmitted charges that were the subject of a reduction order more than 30 days after the order’s entry, the defendant’s guilty *433plea did not preclude his challenge on appeal]).* Concur— Andrias, J.P., Friedman, Acosta, Freedman and Richter, JJ.
In People v Jackson (212 AD2d 732 [1995]), the People raised an argument similar to the argument that they raise here, namely, that the defendant’s guilty plea forfeited his claim that an unauthorized re-presentation of charges to a second grand jury, because the error was non-jurisdictional. In affirming the reversal of the conviction on the merits without discussing that issue (87 NY2d 782), the Court of Appeals necessarily rejected the People’s forfeiture argument. Accordingly, in view of Jackson, we decline to follow our decision in People v McCoy (91 AD3d 537 [1st Dept 2012]). We note that the appellate briefs for McCoy did not bring Jackson to the attention of the panel that decided McCoy. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902752/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Pitaro, J.), rendered September 30, 1986, convicting him of burglary in the third degree, petit larceny, criminal possession of stolen property in the third degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
We find unpersuasive the defendant’s contention that he was denied a fair trial by the prosecutor’s use during summation of an analogy to refute the defendant’s claim of intoxication. While the example utilized by the prosecutor was undoubtedly a poor one, the record reveals that the court struck portions of his statement from the jury’s consideration and repeatedly gave adequate curative instructions explaining the lack of relevance of the example to the issues presented in the case. Under these circumstances, and in view of the overwhelming proof of the defendant’s guilt, which included the testimony of three eyewitnesses, the introduction of both physical evidence and the defendant’s inculpatory postarrest statements, and the defendant’s own trial testimony, we con-*850elude that any resulting error was harmless (see, e.g., People v Safian, 46 NY2d 181, 190, cert denied sub nom. Miner v New York, 443 US 912).
We have considered the defendant’s remaining contentions and find them either to be 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/5902753/ | Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered July 26, 2010, as amended July 29, 2010, convicting defendant, after a jury trial, of promoting prison contraband in the first degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 2V2 to 5 years, unanimously modified, as a matter of discretion and in the interest of justice, to the extent of reducing the sentence to a term of 2 to 4 years, and otherwise affirmed.
While defendant was in prison awaiting trial on charges of which he was subsequently acquitted, a shank was discovered hidden in his cell, during a surprise search. Although defendant did not testify, he proffered a defense, through cross-examination and argument, that the shank did not belong to him, but might have been left in the cell by someone else. Over objection, the court admitted evidence on the People’s direct case that shanks were recovered from defendant’s cell in both a past incident and a subsequent incident.
Defendant argues that the evidence of these uncharged crimes should not have been admitted under People v Molineux (168 NY 264 [1901]). This evidence, however, was not received as proof that defendant had a propensity to keep shanks in his cell. Instead, it was probative of defendant’s knowledge and intent in that “knowing possession” was an element of at least one of the charges on which he was convicted (Penal Law § 205.25 [2]; see e.g. People v Giles, 11 NY3d 495 [2008]; People v Webb, 5 AD3d 115 [1st Dept 2004], lv denied 2 NY3d 809 [2004]). Although defendant argues that he did not “possess” *434the shank (see People v Blair, 90 NY2d 1003 [1997]), there was no testimony refuting the fact that the shank was discovered in a cell occupied only by him (see People v Hurd, 161 AD2d 841 [1990]). The contested issue at trial was whether defendant actually knew the shank was in his cell, directly implicating his state of mind (see People v Alvino, 71 NY2d 233 [1987]). The trial court correctly held that the probative value of this evidence outweighed its prejudicial effect, which the court minimized by way of thorough and repeated limiting instructions.
Defendant’s related argument concerning the prosecutor’s summation is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal of the judgment.
The court, however, finds that as a matter of discretion and in the interest of justice, the sentence should be reduced to a term of 2 to 4 years. Concur—Saxe, J.P., Renwick, Freedman, Roman and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902754/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered December 2, 1986, convicting him of robbery in the second degree (two counts), upon a jury verdict, 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 to suppress the in-court identification testimony of the complainant.
Ordered that the judgment is affirmed.
The hearing court properly permitted the complainant to make an in-court identification of the defendant, although evidence of the showup identification had been suppressed. Clear and convincing evidence supported the determination that the complainant had an independent basis upon which to identify his assailant (see, People v Ballott, 20 NY2d 600, 606-607); he had observed the defendant as he approached, as well as face to face from only inches away during the altercation (see, People v Wright, 112 AD2d 179).
The defendant contends that the complainant, because of his criminal history, should not have been believed by the jury. However resolution of issues of credibility, as well as the *851weight to be accorded to the evidence presented, are primarily to be determined by the jury, which saw and heard the witnesses (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 (CPL 470.15 [5]).
Moreover, the defendant’s conviction was obtained following a fair trial. The court did not abuse its discretion in finding that there was not a good-faith basis for a certain question put to the complaining witness during cross-examination. The trial ruling requiring the defendant to display his tatooed arms for the witness did not violate his privilege against self-incrimination, since it merely compelled the defendant to exhibit physical characteristics (see, United States v Dionisio, 410 US 1, 5-6; People v Brown, 133 AD2d 464).
The trial court properly refused to give the jury a missing witness charge concerning the police officers the complainant spoke with after the incident. The testimony of those officers could only have been either cumulative, immaterial or irrelevant (see, People v Almodovar, 62 NY2d 126).
The sentence imposed was appropriate under the circumstances. We have considered the defendant’s remaining contentions and find that they are unpreserved for appellate review and, in any event, 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/1990111/ | 113 B.R. 311 (1990)
In re William Harvey STILL, Debtor.
Stanley WRIGHT, Trustee, Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Successor in Interest to the First State Bank of Abilene, Defendant.
Bankruptcy No. 188-10285-7, Adv. No. 189-1036.
United States Bankruptcy Court, N.D. Texas, Abilene Division.
April 23, 1990.
*312 Thomas M. Wheeler, Abilene, Tex., for trustee.
Charles A. Beckham, Jr., Kemp, Smith, Duncan & Hammond, El Paso, Tex., for FDIC.
MEMORANDUM OF OPINION ON PREFERENCE
JOHN C. AKARD, Bankruptcy Judge.
By urging that it is protected under § 550(b)(1) of the Bankruptcy Code,[1] the Federal Deposit Insurance Corporation (FDIC) as the Receiver of First State Bank of Abilene, Abilene, Texas (FSB) seeks to prevent the Trustee's recovery of a preferential transfer. The court finds that the FDIC does not qualify as a transferee under that section and, therefore, orders the transfer avoided as requested by the Trustee.
Facts
On August 20, 1987, FSB filed a suit against William Harvey Still (Still) in the District Court of Taylor County, Texas. On June 3, 1988 judgment was entered in favor of FSB for $228,361.50, plus interest and attorneys' fees. On July 29, 1988, FSB filed for writs of garnishment against several parties. Prior to Still's bankruptcy, answers were filed to the garnishment action admitting monies owed to Still as follows:
Total Monthly
Outstanding Installment
Balance Due When Writ
Garnishee Owing Was Served
---------- ------------- --------------
1. Anna M. Whittlesey $ 8,847.07 $150.00
2. Samuel and Catherine Moreman $30,903.64 $324.00
3. Ken Whittlesey $ 8,847.07 $150.00
4. Security State Bank $ 4,030.73 (plus a joint account without
the right of survivorship in the
name of Still's deceased wife in the
amount of $1,492.82)
The debts owed to Still by the Whittleseys and the Moremans are evidenced by installment promissory notes which had not fully matured when the Writ of Garnishment was served. The installment notes are not contingent and are liquidated. The balances of the installment notes are sums certain.
On August 26, 1988, Still filed for relief under Chapter 7 of the Bankruptcy Code. On December 2, 1988, FSB filed a Proof of Claim for $308,334.24 based upon the judgment. On February 17, 1989, the Comptroller of the Currency declared FSB insolvent, and the FDIC was appointed Receiver of FSB. On August 18, 1989, Stanley Wright, the Trustee, objected to FSB's claim and filed this Adversary Proceeding August 23, 1989.
*313 DISCUSSION
The parties agree that FSB's garnishment satisfies all of the elements of a preferential transfer under § 547(b). If a transfer is avoided under § 547, under § 550(a) the trustee may recover for the benefit of the estate the property transferred. An exception to the trustee's right to recover is contained in § 550(b)(1) which provides that the trustee may not recover from "a transferee that takes for value, including satisfaction or securing a present antecedent debt, in good faith, and without knowledge of the voidability of the transfer avoided." The FDIC relies on Osherow v. First RepublicBank San Antonio (In re Linen Warehouse, Inc.), 100 B.R. 856 (Bankr.W.D.Tex.1989).
The FDIC is accorded (in its corporate capacity and, to a lesser extent, in its capacity as a receiver), protections which would not be available to other parties. See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942); 12 U.S.C. § 1823(e) (1989). The object of the D'Oench, Duhme rule is to protect the FDIC from secret agreements between the borrower and the lender which would destroy the value of the assets of a failed bank when those assets are turned over to the FDIC. Bell & Murphy and Assoc. v. Interfirst Bank Gateway, 894 F.2d 750 (5th Cir.1990); Thistlethwaite v. FDIC (In re Pernie Bailey Drilling Co.), 111 B.R. 565 (Bankr.W.D.La.1990).
FSB's garnishment was an action filed in the State District Court of Taylor County, Texas. Still's bankruptcy was filed in this court. 12 U.S.C. § 1823(e) as amended in 1989 covers the FDIC both in its corporate and receivership capacities. Prior to this amendment, the section referred only to the FDIC in its corporate capacity. FDIC v. McClanahan, 795 F.2d 512, 516 (5th Cir.1986). 12 U.S.C. § 1823(e) relates only to an "agreement which tends to diminish or defeat the right, title or interest of the [FDIC] in any asset acquired by it. . . ." Id. at 516. There is no secret agreement or agreement of any nature involved in this proceeding.
The FDIC has the status of a holder in due course if it took the asset in good faith and without knowledge of personal defenses. Sunbelt Savings Association of Texas v. Amercorp Realty Corp., 730 F.Supp. 741 (N.D.Tex.1990). Therefore, the FDIC must establish all of the elements of § 550(b) in order to take advantage of that exception. La Mancha Aire, Inc. v. FDIC (In re La Mancha Aire, Inc.), 41 B.R. 647 (Bankr.S.D.Fla.1984).
Transferee
The FDIC asserted that it is a transferee of FSB, citing the broad definition of transfer in § 101(50) which includes "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption." "When the FDIC is functioning as receiver of a state bank it is not entitled to the protections of the FDIC in its corporate capacity, acting as insurer of a failed bank. If the FDIC took over the Bank as receiver, the FDIC merely steps into the bank's shoes and can only assert the same defenses available to the bank." Evans v. Robbins (In re Robbins), 91 B.R. 879, 889 (Bankr.W.D.Mo.1988).
The FDIC shall be appointed as receiver and shall accept such appointment whenever a receiver is appointed for the purpose of liquidation or winding up the affairs of a failed bank by the appropriate federal banking agency. 12 U.S.C. § 1821(c)(2)(A)(ii). The FDIC as receiver succeeds to "all rights, titles, powers, and privileges of the insured depository institution, and of any stockholder, member, accountholder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution." 12 U.S.C. § 1821(d)(2)(A)(i). Thus, the FDIC succeeds to the assets of the failed institution, but there is no "transfer" even within the broad definition of that term in § 101(50) of the Bankruptcy Code. It is well known that receivers are appointed by statute or by a court and clearly Congress could have included the acquisition of title *314 by a receiver within the definition of transfer if it had chosen to do so.
Value
The FDIC does not point to any value that it paid for FSB's assets. A receiver does not pay value; a receiver takes the assets and liquidates them for the benefit of the creditors of the failed institution. "The FDIC as receiver, quite unlike the FDIC in its corporate capacity when it enters a, purchase and assumption agreement, does not give up anything. It does not pay for assets of a failed bank or assume any liabilities." Pernie Bailey, supra.
The fact that the FDIC in its corporate capacity may have provided insurance to some of the depositors of FSB does not constitute value, because the FDIC in that capacity would be subrogated to the rights of the depositors whom it pays from its insurance fund and would have a claim against the monies collected by the receiver through liquidation.
Good Faith
The Bankruptcy Code does not define good faith, but it has been construed to mean whether the transferee knew or should have known that the purpose of the trade was to defraud the debtor's creditors. Robbins, supra at 884, 886 (citing 4 Collier on Bankruptcy p. 550-9 (15th Ed.1987)). The appointment of a receiver is not the type of transaction designed to defraud the debtor's creditors and, thus, the FDIC should be presumed to be in good faith.
Without Knowledge of the Voidability of the Transfer Avoided
The FDIC asserted that it took these assets under a statutory duty and, thus, it had no knowledge of anything concerning any of the assets until it had taken possession of them.[2] Undoubtedly in passing § 550(b) Congress had in mind a standard business transaction where a purchaser would make a reasonable inquiry before acquiring an asset. Clearly such a purchaser would be on notice of the garnishment suit and of the bankruptcy filing because both are matters of public record. Any prospective purchaser would review the bank's records which would reflect the existence of the bankruptcy because the bank filed a claim in the bankruptcy proceedings. Thus, anyone purchasing this asset (the claim in the garnishment proceeding) would be on notice, and thus would be considered to have knowledge, of the trustee's avoiding powers. The court finds that the FDIC had such knowledge.
Improvement of Position
The trustee points out that § 362 prohibits all entities from taking various acts to enforce, perfect, or create liens against property of the estate. The garnished funds are property of the estate until the garnishment judgment becomes final or, if the garnishment judgment became final prior to the filing of the bankruptcy petition, the transfer is subject to being set aside under the trustee's avoiding powers. The trustee does not object to the FDIC succeeding to FSB's claims, but feels that any attempt by the FDIC to assert that it has an improved position over FSB would constitute a violation of the § 362 automatic stay and, therefore, would be void. Such a literal reading of § 362 would make § 550(b) a nullity, but there is credence to the argument where the FDIC has knowledge of bankruptcy. In this case the FDIC had such knowledge from FSB's files as well as from the public records.
Conclusion
Both the garnishment and the bankruptcy were matters of public record and were undoubtedly reflected in FSB's files. They *315 do not constitute the types of secret agreements which D'Oench, Duhme and 12 U.S.C. § 1823(e) are designed to overcome. Further, the FDIC in its capacity as a receiver is not a transferee within the terms of § 550(b). The Trustee-in-Bankruptcy is entitled to a judgment for the preferential transfer described in his pleadings.
NOTES
[1] The Bankruptcy Code is 11 U.S.C. § 101 et seq. References to section numbers are references to sections in the Bankruptcy Code.
[2] This might be referred to as the "blindfold" theory. The FDIC asserted that if in some way it had actual knowledge prior to the failure of FSB, then it might have taken with knowledge. What does the FDIC mean? Would this lead to a situation where every time one files an action against a bank the FDIC should be made a party, even though the bank is thought to be solvent? Does this mean that every time a bankruptcy is filed, notice of the filing should be sent to the FDIC in the event that it should later be appointed receiver of a bank creditor? This theory is obviously impractical. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/6495496/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONG MIN KIM, No. 21-70432
Petitioner, Agency No. A200-311-565
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 13, 2022
San Francisco, California
Before: RAWLINSON, CHRISTEN and KOH, Circuit Judges.
Jong Min Kim (“Kim”), a native and citizen of South Korea, seeks review of
a decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an
immigration judge (“IJ”) of Kim’s motion to reopen. We have jurisdiction under 8
U.S.C. § 1252. We “review the BIA’s denial of a motion to reopen for an abuse of
discretion,” Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022), and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“the BIA’s legal determinations de novo,” Velasquez-Rios v. Wilkinson, 988 F.3d
1081, 1085 (9th Cir. 2021). For the reasons below, we deny the petition for
review.1
1. The “BIA is entitled to deny a motion to reopen where the applicant
fails to demonstrate prima facie eligibility for the underlying relief.” Lopez-
Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013). The relief Kim seeks is
cancellation of removal. For cancellation of removal, Kim must prove “all aspects
of [his] eligibility,” including showing that “he has not been convicted of certain
criminal offenses.” Pereida v. Wilkinson, 141 S. Ct. 754, 758-59 (2021) (emphasis
added). Kim was previously convicted of a drug felony under California Health
and Safety Code § 11359, rendering him ineligible for cancellation of removal. See
Roman-Suaste v. Holder, 766 F.3d 1035, 1040 (9th Cir. 2014).
However, a state conviction vacated because of a procedural or substantive
defect in the underlying criminal proceeding cannot be used in removal
proceedings. See Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020). A state
conviction vacated for equitable, rehabilitation, or immigration hardship reasons
remains valid under federal immigration law. Id.
A California state court vacated Kim’s drug felony conviction prior to Kim
filing the motion to reopen. Kim bears the burden of showing that Kim’s
1
Kim’s motion for stay of removal is denied as moot.
2
conviction was vacated because of a procedural or substantive defect. See Pereida,
141 S. Ct. at 761 (rejecting the argument that the government bears the burden of
proof to show whether an individual applying for cancellation of removal was
convicted of disqualifying criminal offenses).
Kim fails to carry his burden because he fails to identify in the record any
procedural or substantive defect in his underlying criminal proceeding. See Prado,
949 F.3d at 441-42. As such, Kim fails to show prima facie eligibility for
cancellation of removal, and the BIA did not abuse its discretion in denying Kim’s
motion to reopen.
Kim relies on Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006), but that case
is inapposite. In Nath, we required the government to show why the state court
vacated a conviction because the government relied on that conviction as the basis
of removal. Id. at 1188-89; accord 8 U.S.C. § 1229a(c)(3)(A). Here, the
government did not rely on Kim’s vacated conviction as the basis for removal.
2. Kim’s due process claim is unexhausted and unpersuasive. To the
extent Kim alleges a due process violation by the IJ, Kim failed to exhaust that
claim before the BIA. See Sola v. Holder, 720 F.3d 1134, 1136 (9th Cir. 2013)
(due process claims correctable by the BIA must be presented to the BIA). Nor has
Kim shown any error by the BIA or resulting prejudice. Lata v. I.N.S., 204 F.3d
1241, 1246 (9th Cir. 2000) (petitioner must show error and prejudice to succeed on
3
a due process claim).
3. Kim argues the BIA erred by relying on Matter of Thomas &
Thompson, 27 I. & N. Dec. 674 (A.G. 2019), a published opinion by the United
States Attorney General. This argument fails for two reasons. First, in the instant
case the BIA did not rely on the portion of Matter of Thomas overruling BIA
precedent. Second, Kim’s contention that Matter of Thomas violates the United
States Constitution because the United States Attorney General overruled prior
BIA precedent, is incorrect. “[T]he Attorney General may overrule the BIA by
issuing a published opinion.” Miguel-Miguel v. Gonzales, 500 F.3d 941, 947 (9th
Cir. 2007).
PETITION DENIED.
4 | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902756/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered March 26, 1986, convicting him of assault in the first degree and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant’s claim that the evidence in the record was insufficient to convict him of the crime of assault in the first degree is without merit. The standard for reviewing the legal sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to have been proven beyond a reasonable doubt (see, People v Contes, 60 NY2d 620). Applying this measure to the case at bar, the evidence was legally sufficient to sustain the jury’s *852conclusion that the serious injury sustained by the complainant was inflicted by the defendant with a knife.
Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15). The evidence corroborating the prosecution’s theory that the complainant’s injury was caused by a knife outweighs the evidence that he was injured by a blunt instrument.
The defendant’s contention that the verdict convicting him of assault in the first degree and acquitting him of attempted robbery in the first degree was repugnant is not preserved for appellate review. In any event, the contention is without merit (see, People v Goodfriend, 64 NY2d 695).
The trial record also demonstrates that the defendant attempted to steal United States currency and not clothing, as the defendant contends.
We have examined the defendant’s remaining contentions, including those raised in his pro se brief, and find them to be without merit. Mangano, J. P., Brown, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902757/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered February 2, 1987, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Pesce, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence and statements made by him at the time of his arrest.
Ordered that the judgment is affirmed.
The defendant contends that there was insufficient justification for the stop of his vehicle. He claims that Police Officer McAleavey’s testimony that he saw a bottle being passed between himself and a codefendant inside the defendant’s car was a mere pretext for a more intrusive search. He further argues that the doctrine of estoppel is applicable in this case.
In People v Ingle (36 NY2d 413, 420), the Court of Appeals stated: "It should be emphasized that the factual basis required to support a stop for a 'routine traffic check’ is minimal. An actual violation of the Vehicle and Traffic Law need not be detectable. For example, an automobile in a general state of dilapidation might properly arouse suspicion of equipment violations. All that is required is that the stop be not the *853product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion’ ”. Moreover, the court in Ingle stated that a single automobile traveling on a public highway may be stopped for a "routine traffic check” when a police officer reasonably suspects a violation of the Vehicle and Traffic Law. It is undisputed that drinking while driving is a violation of Vehicle and Traffic Law § 1227. The question is whether the officer actually saw the bottle being passed and, if so, was this a pretext for a more intrusive search. The hearing court stated that, "[hjaving observed officer McAleavey’s demeanor and responses during his direct and cross examination, this court found his testimony credible”.
It is well settled that much weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses (People v Prochilo, 41 NY2d 759). Moreover, issues of a witness’s credibility are primarily for the trial court (People v Garafolo, 44 AD2d 86). Reversal is warranted, however, where the fact findings of the trial court are manifestly erroneous or so plainly unjustified by the evidence that the interests of justice necessitate their nullification (see, People v Garafolo, supra, at 88).
In the case at bar Officer McAleavey testified that he did indeed see the bottle being passed above the car seats and this observation was the primary motivating factor for stopping the car. He also testified that that area where the transfer occurred was well lit and the patrol car was 1 to 2 car lengths behind the defendant’s car. Under the circumstances, the hearing court was correct in crediting Police Officer McAleavey’s testimony and ruling that the stop was reasonable.
Finally, the defendant argues that the prosecution should be estopped from exploiting the evidence of driving while drinking, because, prior to the stop, the defendant and his codefendant had been asked to move on by the officers. Thus, the defendant contends that the officers encouraged the unlawful activities. It should be noted at the outset that the defendant failed to raise this issue in his motion papers or during the suppression hearing. Consequently, he has failed to preserve the issue for review (see, People v Tutt, 38 NY2d 1011; People v Lyons, 125 AD2d 593, lv denied 69 NY2d 952). Even assuming that the issue was preserved for review it cannot withstand scrutiny. The defendant and his codefendant were not intoxicated when they were told to move on. They did not rely *854on any statements of the officers as to the legality of drinking and driving nor were the officers under a duty to inform them that such conduct was proscribed. They voluntarily resumed drinking while driving. Thus, the purported defense of estoppel is unavailable to them. Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902759/ | Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 3, 2012, which, insofar as appealed from, as limited by the briefs, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) claim as against defendant 337 Greenwich LLC (377 Greenwich), denied 377 Greenwich’s cross motion for summary judgment dismissing the common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6) claims as against it, granted defendant/third-party plaintiff Magnetic Construction Group Corp.’s (Magnetic) cross motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against it, and denied 377 Greenwich’s cross motion for summary judgment on its common-law and contractual indemnification and breach of contract claims against Magnetic, unanimously affirmed, without costs.
Plaintiffs made a prima facie showing that 377 Greenwich failed to provide the injured plaintiff with an adequate scaffold, *435which is a safety device under Labor Law § 240 (1), and that as a consequence, he fell and injured himself. It is unrefuted that during an ongoing construction project, plywood sheeting was placed over the planks on the scaffold and that, in one area, there were two planks missing beneath the plywood. The scaffolding law mandates that owners and contractors provide safety devices which shall be so constructed, placed and operated as to give proper protection to persons performing work covered by the statute (Labor Law § 240 [1]). 377 Greenwich had a nondelegable, statutory duty to ensure that the scaffold in use by plaintiff during the course of this construction project was an effective and stable safety device (Schultze v 585 W. 214th St. Owners Corp., 228 AD2d 381, 381 [1st Dept 1996], citing Gordon v Eastern Ry. Supply, 82 NY2d 555, 560-562 [1993]). Since preventing a worker from falling is a core objective of the statute, plaintiff established a violation of section 240 (1) as a matter of law (Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 175 [1st Dept 2004]).
Although 377 Greenwich argues that the planks were improperly removed, or possibly even stolen, by the employees of another contractor, no facts are presented from which to conclude that this was an extraordinary and/or unanticipated intervening act that constituted a superceding cause for plaintiffs injuries (cf. Montgomery v Federal Express Corp., 4 NY3d 805 [2005]). 377 Greenwich’s principal testified that he was aware that other subcontractors on the site were moving and removing construction tools and materials. 377 Greenwich’s characterization of the removal of the planks as a “theft” is entirely speculative and, even if true, does not convert this foreseeable event into a superceding intervening cause (Steinberg v New York City Tr. Auth., 88 AD3d 582 [1st Dept 2011]).
The motion court also correctly determined that the medical records did not create an issue of fact about whether plaintiff actually fell from a scaffold. There is overwhelming evidence, physical as well as testimonial, from both interested and non-interested witnesses, that plaintiff fell from the scaffold. Assuming the physician’s assistant at St. Vincent’s hospital (who admitted she was unfamiliar with the term “scaffolding”) correctly transcribed plaintiffs statement as, “I twisted my ankle coming off the truck,” this lone, uncorroborated statement is not sufficient to raise an issue of fact. Indeed, even if the statement is true, it is well established law that “[t]here may be more than one proximate cause of a workplace accident” (Pardo v Bialystoker Ctr. & Bikur Cholim, 308 AD2d 384, 385 [1st Dept 2003]).
*436The motion court correctly refused to dismiss the Labor Law § 241 (6) claim against 377 Greenwich. Although Industrial Code (12 NYCRR) § 23-5.1 (c) is insufficiently specific to support a Labor Law § 241 (6) claim, 377 Greenwich failed to establish that the scaffolding planks complied with Industrial Code (12 NYCRR) § 23-5.1 (e), which is a proper predicate for a Labor Law § 241 (6) claim (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). The latter code provision requires, among other things, that scaffolding planks be of a specified width (§ 23-5.1 [e] [5]) and “laid tight” (§ 23-5.1 [e] [1]).
377 Greenwich cross moved to dismiss plaintiffs Labor Law § 200 and common-law negligence claims on the sole ground of lack of notice. Any references in the cross motion to supervision were raised only in connection with relief requested by and against codefendant Magnetic. Plaintiff restricted his arguments only to those raised in 377 Greenwich’s limited cross motion. Consequently, to the extent this accident involves the methods or materials used by plaintiff at the work place, 377 Greenwich never made out a prima facie case entitling it to summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Raffa v City of New York, 100 AD3d 558 [1st Dept 2012]).
The construction agreement relied on by both 377 Greenwich and Magnetic is unsigned and replete with editorial markings. It does not clearly and unambiguously obligate Magnetic to indemnify the owner, 377 Greenwich (see Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]). Therefore, the motion court properly denied 377 Greenwich’s cross motion against Magnetic for contractual indemnification.
The motion court also properly denied 377 Greenwich’s cross motion for common-law indemnification against Magnetic, since 377 Greenwich failed to show that plaintiff’s accident was caused by Magnetic’s negligence (see Correia v Professional Data Mgt, 259 AD2d 60, 65 [1st Dept 1999]). Similarly the motion court properly dismissed the Labor Law § 200 and common-law negligence claims against Magnetic as there is no evidence that Magnetic, assumed authority over plaintiffs work or exercised the requisite degree of supervision and control over the work to hold it liable (Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007]).
As to its breach of contract claim against Magnetic, 377 Greenwich failed to identify in its original motion papers the precise contractual provision requiring Magnetic to name it as *437an additional insured (see Bryde v CVS Pharmacy, 61 AD3d 907, 909 [2d Dept 2009]). The issue, therefore, remains for trial. Concur—Saxe, J.P., Renwick, Freedman, Roman and Gische, JJ. [Prior Case History: 2012 NY Slip Op 30836(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902760/ | Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Sacks, J.), rendered January 6, 1982, convicting him of burglary in the third degree, petit larceny (two counts), criminal mischief in the fourth degree, resisting arrest and criminal possession of a hypodermic instrument, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in light most favorable to the prosecu*855tion (see, People v Contes, 60 NY2d 620), we find the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).
The defendant’s contention that the trial court’s pretrial Sandoval ruling constituted an abuse of discretion is without merit (see, People v Frumerin, 121 AD2d 736, lv denied 68 NY2d 812). Mollen, P. J., Bracken, Rubin and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902761/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered July 2, 1985, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant and two codefendants, Tracy Brown and Mark Bradford, were jointly tried in connection with the robbery and murder of Herman Jean on January 31, 1984. Prior to trial, the defendant moved for a severance on the ground that the introduction into evidence of two statements made by Brown to law enforcement officials at the time of his arrest, which statements inculpated the defendant, would constitute a violation of the Confrontation Clause. The court denied the severance motion on the ground that the statements could be effectively redacted and sufficiently interlocked with the statements made by the defendant at the time of his arrest so that the defendant would not be unduly prejudiced by their introduction into evidence with a limiting instruction.
At the trial, redacted versions of Brown’s statements, one of which was videotaped, were introduced into evidence. In his written statement, Brown indicated that he, the defendant and two others met and someone suggested they "get a guy”. They approached Jean and surrounded him. While Brown was standing to the side, someone asked Jean for his rings and a shot rang out. Brown’s videotaped statement similarly detailed the events of the night in question, except that Brown denied any prior knowledge of or participation in the robbery and said that he was standing 2 to 3 feet away when it occurred. Also introduced into evidence were the redacted statements of the defendant. At one point in the proceedings, counsel acknowledged that the defendant’s statement might interlock with the codefendant Brown’s and thus be admissible with a limiting instruction. In the first of his statements, *856which was reduced to writing by Detective Colucci, the defendant admitted participating in the robbery. The following redacted statement of the defendant to Detective Colucci was read to the jurors: "I met Shalah,_and Joe in the game room on Troy. We were talking & smoking a reefer. I said that I was going to go to the corner. They came with me. When we were on E’Pkway we saw the man changing his tire. One of the guys said, lets take him’. We got around him, me and-went behind him and Joe and_got in front. One of them said 'be cool’. One of them_ grabbed him and fired a shot. I ran to Lincoln Place”.
In the course of his subsequent statement which was videotaped, the defendant denied all involvement in the crime and claimed to have been standing 3 to 4 feet away when the incident occurred.
In his original brief on appeal, the defendant did not raise the issue of whether the court erred in denying the motion for a severance. However, while the appeal was pending, the United States Supreme Court decided Cruz v New York (481 US —, 107 S Ct 1714). In People v Cruz (66 NY2d 61, 69), the Court of Appeals had determined that the defendant had not been denied his right to confrontation by the admission of his codefendant’s confession at their joint trial with appropriate limiting instructions, relying on the "recognized exception” to the Bruton rule which "holds that if the statements of the defendant and codefendant are substantially identical, or 'interlock’, there is no violation of defendant’s right to confrontation”. The Supreme Court reversed the Court of Appeals decision in Cruz holding that where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant since it does not bear sufficient indicia of reliability, the Confrontation Clause bars its admission at their joint trial, even if limiting instructions are given to the jury and even if the defendant’s own confession is admitted against him. Thus, the trial court’s determination in the instant case was erroneous under Cruz v New York (supra). However, this error does not, under the circumstances, require reversal of the judgment of conviction.
Where a Confrontation Clause violation is involved, the error under review will be deemed harmless only where it can be said that it was harmless beyond a reasonable doubt (Harrington v California, 395 US 250; People v Smalls, 55 NY2d 407). To satisfy that criterion, there must be overwhelming proof of guilt and no reasonable possibility that the *857jury would have acquitted the defendant but for the error (People v Crimmins, 36 NY2d 230).
The evidence adduced at trial, which included the testimony of three eyewitnesses to the robbery, the dying declarations of the victim who described two of the perpetrators, and the defendant’s unequivocal confession to Detective Colucci, provided the requisite proof of the defendant’s participation in the robbery and the murder of Herman Jean. The eyewitnesses testified to having observed four individuals approach the victim who was, at the time, working on his car, surround him, search his pockets, strike him and flee after what sounded like an explosion. Clearly, their consistent and disinterested testimony supported the defendant’s initial account of the shooting as related to Detective Colucci and cast doubt upon the veracity of the defendant’s subsequent videotaped statement in which he claimed that he had merely been an innocent bystander. Moreover, there was no reasonable possibility that the jury would have acquitted the defendant but for the admission of Brown’s statements into evidence. Under the circumstances, any error occasioned by the court’s denial of the defendant’s severance motion and the admission of the nontestifying codefendant’s statements at the joint trial was clearly harmless beyond a reasonable doubt (cf., People v Cruz, 70 NY2d 733).
We note further that while the prosecutor’s summation did contain some improper and potentially prejudicial remarks, the trial court’s prompt curative instructions served to correct these improprieties (see, People v Berg, 59 NY2d 294; People v Cuesta, 119 AD2d 688; cf., People v Ashwal, 39 NY2d 105), so that any resultant prejudice was insufficient to have resulted in the denial of a fair trial (see, People v Galloway, 54 NY2d 396).
The sentence imposed was not unduly harsh and excessive and there are no circumstances present which would warrant disturbing the sentencing court’s exercise of discretion (see, People v Suitte, 90 AD2d 80).
We have considered the defendant’s remaining contention and find it to be without merit. Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902945/ | Judgment, Supreme Court, New York County (Brenda Soloff, J.), rendered on November 20, 1985, unanimously affirmed.
Application by appellant’s counsel to withdraw as counsel is granted. (See, Anders v California, 386 US 738; People v Saunders, 52 AD2d 833.) We have reviewed this record and agree with appellant’s assigned counsel that there are no nonfrivolous points which could be raised on this appeal. Concur—Sandler, J. P., Carro, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902946/ | Leave to appeal to Court of Appeals denied; reargument granted, and upon reargument, the order of this court entered on December 1, 1987 (135 AD2d 1153) is vacated and the order of the Supreme Court, New York County (Louis Grossman, J.), entered on November 12, 1986, which denied defendant’s motion for partial summary judgment, is reversed, on the law, and the motion for partial summary judgment granted, without costs as set forth in the following memorandum:
The issue involved herein is one of law, and interpretation of the 150-120-day notice requirement of section 60 of the Code of the Rent Stabilization Association of New York City, Inc. which interpretation does not, for the reasons which follow, and contrary to the court’s ruling below, depend on the factual determination of whether defendant lives in one apartment or two.
The apartment building in question, on Central Park South, is presently a cooperative corporation, converted to such under a noneviction plan. Plaintiff-respondent is the owner of the cooperative shares allocated to a duplex apartment, numbered 11B/12B, and an adjacent studio apartment, numbered 12C. The defendant tenant is an elderly widow who states that she resides in these two adjacent apartments. She has resided in apartment 11B/12B since the early 1960’s, and in or around 1972 she began renting 12C. While the building was still owned by the previous landlord, the tenant, after having given notification, built a connecting doorway between the apartments and was required by the previous landlord to post a security deposit to cover the cost of necessary repairs to the doorway upon giving up her lease. The following additional facts are not disputed:
1. the tenant has always had separate leases for the two apartments, with separate expiration dates and separately regulated rents;
2. the certificate of occupancy for the apartment building *264shows that 12C and 11B/12B are separate apartments, and the apartments are separately registered with the New York State Division of Housing and Community Renewal; and
3. the present owner purchased the two apartments in separate transactions and received separate stock certificates and proprietary leases.
By letter dated June 21, 1985, the landlord notified the tenant of his intent to terminate her leases, stating that he would not offer "renewal leases for apartments 11-12B/12C on the grounds that you do not maintain or occupy the Apartments as your primary residence.” The notice, although not specifying such, fell within the period of 150 to 120 days prior to the expiration of the lease for the studio apartment, but was not within the window period for the 11B/12B lease.
The tenant moved for partial summary judgment on the ground of untimely notice of nonrenewal as to the 11B/12B lease, which she argued precluded the action for possession on the basis of nonprimary residence and entitled her to a renewal lease on 11B/12B. The court denied summary judgment, concluding that a justiciable controversy existed as to whether the two apartments "are but one apartment in spite of the separate leases and the building certificate of occupancy”.
Whether or not structurally there is one apartment or two and whether this apartment or apartments is the tenant’s primary residence are factual issues not at all dispositive of the question of law concerning whether proper notice of nonrenewal has been given pursuant to section 60 of the Code of the Rent Stabilization Association of New York City, Inc.
Section 60 requires that notification of intent not to renew a "lease” be given not more than 150 and not less than 120 days prior to the termination date of the lease and is applicable when nonrenewal is based on a claim of nonprimary residence. (Golub v Frank, 65 NY2d 900, 901.) Moreover, the Court of Appeals, affirming this court, has applied the 150-120-day notice requirement even to a case in which the landlord’s time for giving the notice predated the Golub decision. (See, 525 Park Ave. Assocs. v De Hoyas, 69 NY2d 692, affg 121 AD2d 908.) Accordingly, petitioner cannot excuse his failure to provide timely notice as to the 11B/12B lease on the basis of any reliance on pre-Golub case law.
The only sensible interpretation of section 60, which speaks only of notice of nonrenewal of a "lease”, is that a tenant who holds two leases with separate expiration dates, as here, is *265entitled to timely notice of nonrenewal as to each lease. The obviousness of this is clear when one considers the possibility of a tenant having two leases a few months apart or even a year apart. Obviously, it would be impossible for one notice to be timely as to both such leases. Thus, if one were to solve this problem by disregarding the existence of separate leases, which under property law is what signifies the transfer of an interest in property, and focus instead on whether the apartments somehow merged as one, then the next question which must be resolved is which apartment lease expiration date survives to trigger the required notice. The landlord herein reveals the illogic of his own argument when he alleges that the studio apartment no longer "exist[s] as a viable, separate unit.” If so, and that apartment has merged with 11B/12B, then the notice requirement would logically have to be tied to the 11B/12B lease expiration date. Yet, the notice herein was untimely as to this lease. According to the landlord’s own analysis, then, this proceeding would have to be dismissed for failure to provide timely 150-120-day notice.
It is patently clear that it is not feasible to argue that an interpretation of the 150-120-day notice requirement depends on whether these two apartments are structurally 1 or 2. Partial summary judgment, therefore, should have been granted to bar the action seeking possession of apartment 11B/12B, since the landlord failed to give timely notice of nonrenewal of the lease to 11B/12B. Concur—Murphy, P. J., Carro, Rosenberger, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902764/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered May 17, 1984, convicting him of murder in the second degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant claims error, inter alia, in that no Wade *860hearing was held in order to determine the validity of the identifications of him as the murderer of Joseph Douglas in East New York section of Brooklyn. Douglas had apparently come to the aid of two women the defendant was robbing at gunpoint. The defendant was identified in court by the two women, Douglas’s cousin, who was with Douglas at the time of the murder, and three other witnesses who saw the defendant with a gun in the vicinity of the street corner where the killing occurred. Defense counsel failed to move for a Wade hearing (CPL 710.20 [6]; 710.60 [1]). Where such a failure occurs, the defendant neglects, as a matter of law, to preserve the identification issue for appellate review (see, People v Manners, 118 AD2d 734, lv denied 68 NY2d 670; People v Shaoul, 96 AD2d 892, 893).
Furthermore, such a failure to move cannot be said to have been ineffective assistance of counsel (see, People v Morris, 100 AD2d 630, 631, affd 64 NY2d 803). The standard to be used in testing for ineffective assistance of counsel is whether under the totality of the circumstances, the defense attorney provided "meaningful representation” (People v Baldi, 54 NY2d 137, 147). Losing trial tactics should not be confused with ineffectiveness (People v Baldi, supra, at 147). Taken as a whole, trial counsel provided meaningful representation.
We have examined the defendant’s other contention and find it 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/5902767/ | Orders, Supreme Court, New York County (Milton A. Tingling, J.), entered June 22, 2012, which, to the extent appealed from, denied defendants/third-party defendants 450 Park LLC and Taconic Management Company, LLC’s motion for summary judgment dismissing the complaint, the third-party complaint and all cross claims asserted against them, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
In this and related actions, Sherle Wagner International, L.L.C. (SWI) or its subrogee, seeks recovery for losses sustained when SWI’s Manhattan showroom, located in the sub-basement of 60 East 57th Street, became flooded after the sump pump in an adjacent Con Edison vault failed to work. The vault, which was located outside of the premises, housed an electrical transformer and supplied power to the premises through electrical wires. The wires were run through conduits between the vault and a “network compartment” room, which shared a wall with the vault, but was located within 450 Park LLC’s premises.
450 Park LLC and Taconic Management Company, LLC, the owner and property manager of the premises, respectively, made a prima facie showing of entitlement to dismissal of the claims asserted against them. The motion papers established that 450 Park LLC and Taconic Management Company, LLC lacked control or responsibility for the space within the conduits, through which their two experts maintained that the water entered the premises, and lack of prior notice of an insufficient waterproofing condition. Although the network compartment was located on the premises, it housed Con Edison’s equipment and Con Edison had exclusive access to the locked room, via use of a standardized key used for other network compartments throughout Manhattan. Further, a long-time Con Edison em*438ployee testified that, in order to prevent water from traveling through the conduits between the vault and the network compartment, the ducts were packed with a fibrous substance and then sealed with a sealant, which materials he carried on his truck and applied when necessary.
In opposition, SWI and Con Edison failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Con Edison did not dispute that the water entered the premises through the conduits which carried its wires from the vault to Con Edison’s equipment in the network compartment. As such, responsibility for sealing the space between the conduits and the exterior wall of the premises, on which point the opposition papers were focused, is not at issue. Given Con Edison’s admitted responsibility for the “electrified components” in the network compartment (see 16 NYCRR 98.4), there is no logical basis upon which to exclude its responsibility for the sealing of the subject conduits. Concur—Mazzarelli, J.R, Renwick, Richter, Gische and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902769/ | Application by John O. Hughes, a disbarred attorney *862and counselor-at-law, for reinstatement to the Bar of the State of New York.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
Ordered that the application is denied. Mollen, J. P., Mengano, Thompson, Brown and Kunzeman, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4557981/ | Opinion issued August 18, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00236-CV
———————————
LISA RODRIGUEZ, Appellant
V.
UNIVERSAL SURGICAL ASSISTANTS, INC., Appellee
On Appeal from the 458th District Court
Fort Bend County, Texas
Trial Court Case No. 18-DCV-258012
MEMORANDUM OPINION
In this interlocutory appeal,1 appellant, Lisa Rodriguez, challenges the trial
court’s denial of her motion to dismiss the claims of appellee, Universal Surgical
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.008, 51.014(a)(12).
Assistance, Inc. (“Universal Surgical”), under the Texas Citizen’s Participation Act
(“TCPA”).2 In two issues, Rodriguez contends that the trial court erred in denying
her motion to dismiss.
We affirm.
Background
In its petition and request for temporary restraining order, Universal Surgical,
a provider of third-party medical billing services, alleged that it developed and
maintains proprietary methodology and processes for medical billing that it taught
to Rodriguez, a former employee.
Rodriguez began her employment with Universal Surgical as manager of its
Universal Surgical billing department in April 2014. She signed a Non-Competition
Agreement with Universal Surgical that prohibited her from “directly or indirectly
engag[ing] in any business” within a sixty-mile radius of Houston, Texas that
competes with Universal Surgical “[f]or a period of [two] years after the effective
2
See id. §§ 27.001–.011. The Texas Legislature amended the TCPA in June 2019,
but the amendments apply only to an action filed on or after September 1, 2019. See
Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–12, 2019 TEX. SESS. LAW SERV.
684 (current version at TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011). The
2019 amendments, which, among other things, provided clarification for the
TCPA’s application, do not apply here. Because the former version of the TCPA
applies to this case, all citations to the statute herein are to the TCPA as it existed
before September 1, 2019.
2
date of th[e] [a]greement . . . .”3 During her employment, Universal Surgical
instructed Rodriguez on how to use its billing methods and processes, and it provided
her with password-protected access to its proprietary information.
Rodriguez ended her employment with Universal Surgical on December 3,
2018. Immediately thereafter, she went to work for American Surgical Professionals
in Fort Bend County, Texas—a competing company with its own medical billing
department. Two weeks after leaving Universal Surgical, Rodriguez contacted
Rachelle Shaw, a Universal Surgical employee who had worked under Rodriguez’s
supervision. Rodriguez told Shaw that she had left a notebook in her former office
and asked her to deliver it to her. Before sending the notebook, Shaw looked at its
contents and found that the notebook did not contain Rodriguez’s personal
information; rather, it contained information about Universal Surgical’s billing
systems. Shaw returned the notebook to the office and reported Rodriguez’s request
to Universal Surgical.4
Universal Surgical brought claims against Rodriguez for violations of the
Texas Uniform Trade Secret Act, breach of the contract, tortious interference with
existing contractual relations, conspiracy, breach of fiduciary duty, and a declaratory
3
Universal Surgical attached a copy of the Non-Competition Agreement to its
petition.
4
Universal Surgical attached the declaration of Shaw to its petition.
3
judgment. Universal Surgical sought damages, declaratory and injunctive relief, and
attorney’s fees.
Rodriguez answered and moved to dismiss Universal Surgical’s claims
against her under the TCPA,5 arguing that Universal Surgical’s claims should be
dismissed because they are based on, or related to, Rodriguez’s exercise of the right
of association and the right of free speech. After Universal Surgical responded, the
trial court denied Rodriguez’s motion.
Standard of Review
We review de novo a trial court’s ruling on a TCPA motion to dismiss. See
Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d
345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). In making this
determination, we view the pleadings and evidence in a light most favorable to the
nonmovant. Schimmel v. McGregor, 438 S.W.3d 847, 855–56 (Tex. App.—Houston
[1st Dist.] 2014, pet. denied).
TCPA Motion to Dismiss
In her first issue, Rodriguez argues that the trial court erred in denying her
motion to dismiss Universal Surgical’s claims against her because she met her
burden to show that the claims against her are based on, or related to, her exercise
of the right of association and the right of free speech.
5
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a).
4
Under the TCPA, a defendant may move to dismiss a “legal action” that is
“based on, relate[d] to, or . . . in response to a party’s exercise of the right of free
speech, right to petition, or right of association.” TEX. CIV. PRAC. & REM. CODE
ANN. § 27.003(a); Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d
127, 131 (Tex. 2019). “The TCPA’s purpose is to identify and summarily dispose
of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious
lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015); see KTRK Tel., Inc. v.
Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
The TCPA requires that a trial court deciding a motion to dismiss “shall
consider the pleadings and supporting and opposing affidavits” filed by the parties.
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). The statute provides a
three-step process to determine whether a lawsuit or claim should be dismissed.
Creative Oil & Gas, 591 S.W.3d at 132; see also TEX. CIV. PRAC. & REM. CODE
ANN. §§ 27.003 (“Motion to Dismiss”), 27.005 (“Ruling”).
Under the first step, a movant must show by a preponderance of the evidence
that the TCPA applies. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). The
TCPA applies if the nonmovant’s “legal action”—defined as “a lawsuit, cause of
action, petition, complaint, cross-claim, or counterclaim or any other judicial
pleading or filing that requests legal or equitable relief”—is based on, related to, or
5
in response to the movant’s exercise of (1) the right of free speech, (2) the right to
petition, or (3) the right of association. Id.; In re Lipsky, 460 S.W.3d at 586–87.
If the movant shows that the TCPA applies, then the burden shifts to the
nonmovant under the second step to establish by “clear and specific evidence a prima
facie case for each essential element” of its claim. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.005(c); In re Lipsky, 460 S.W.3d at 587. If the movant meets the first
step, but the nonmovant does not meet the required showing of a prima facie case,
the trial court must dismiss the nonmovant’s claim. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005. Under the third step, even if the nonmovant satisfies the
second step, the court will nonetheless dismiss the claim if the movant proves by a
preponderance of the evidence the essential elements of a valid defense to the
[nonmovant’s] claim.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d); Youngkin
v. Hines, 546 S.W.3d 675, 681 (Tex. 2018).
A nonmovant can avoid the TCPA’s burden-shifting requirements by showing
that one of the Act’s several exemptions applies. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.010.
According to Universal Surgical’s petition, Rodriguez misappropriated its
confidential and proprietary information and solicited its employees to benefit her
new employer. Since Rodriguez filed her appellant’s brief, this Court held en banc
that the associational rights protected by the TCPA are public in nature and thus do
6
not include acts in furtherance of private business interests like the ones between
Rodriguez and her new employer. See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457,
475–76 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (en banc) (op. on reh’g);
see also Nat’l Signs, Inc. v. Graff, No. 01-18-00662-CV, 2020 WL 2026321, at *3–
4 (Tex. App.—Houston [1st Dist.] Apr. 8, 2020, no pet.) (mem. op.).
To the extent that Rodriguez also asserts that Universal Surgical’s claims were
based on her exercise of her right of free speech, that claim also fails. The TCPA
defines “exercise of the right of free speech” as “a communication made in
connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(3). Rodriguez’s communications with her employer were not “made in
connection with a matter of public concern” because they had “no potential impact
on the wider community or a public audience of potential buyers and sellers,” having
“no public relevance beyond the pecuniary interests of the private parties.”
Gaskamp, 596 S.W.3d at 477. We thus conclude that Rodriguez did not meet her
burden of showing, by a preponderance of the evidence, that Universal Surgical’s
claims are based on, related to, or in response to the exercise of her right of
association or her right of free speech. We hold that the trial court did not err in
denying Rodriguez’s motion to dismiss.
7
We overrule Rodriguez’s first issue.6
Conclusion
We affirm the trial court’s order denying Rodriguez’s TCPA motion to
dismiss.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.
6
Because Rodriguez’s first issue is dispositive, we need not address her second issue.
See TEX. R. APP. P. 47.1.
8 | 01-03-2023 | 08-24-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902773/ | Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered December 19, 2011, convicting defendant John F. Haggerty, Jr., after a jury trial, of grand larceny in the second degree and money laundering in the second degree and sentencing him to an aggregate term of lVs years, with $750,000 in restitution, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5). Judgment, same court, Justice and date, convicting defendant Special Election Operations, LLC of money laundering in the second degree, and imposing a conditional discharge, unanimously affirmed.
The verdict was based on legally sufficient evidence, and there was no unlawful variance between the indictment and the proof. The indictment, the proof at trial, the prosecutor’s summation and the court’s instructions were all based on the theory that defendant Haggerty stole money from Mayor Bloomberg by making false representations that the money that the Mayor transferred to the Independence Party would be used for an extensive ballot security operation costing about $1.1 million. *439Although the Mayor could not have controlled how the Independence Party used that money, the theft was committed when Haggerty used false representations to cause the Mayor to transfer the money to the Party. While Haggerty also deceived the Independence Party into believing that it was paying a vendor for ballot security services when it transferred the money to Haggerty’s shell corporation, the Mayor remained the true victim of Haggerty’s deception. Accordingly, the evidence established a theft from the Mayor, as charged in the indictment (compare People v Grega, 72 NY2d 489 [1988]). Haggerty’s assertion that the jury convicted him on an improper theory is based on speculative inferences from jurors’ notes.
Since the transfer of the money from the Mayor to the Independence Party was the larceny, the evidence also proved defendants’ guilt of money laundering, based on the transfer of the proceeds of the larceny from the Independence Party to the shell corporation. The evidence supports the conclusion that the transfer was designed in whole or in part to “conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds” of the preexisting larceny (Penal Law § 470.15 [1] [b] [ii] [A]).
The court properly exercised its discretion in denying defendants’ mistrial motion, made when the prosecutor addressed a remark to the court during a colloquy on a matter of law, but within the hearing of the jury, that impinged on Haggerty’s right to refrain from testifying. The jury is presumed to have followed the court’s prompt curative instruction, as well as its other instructions to draw no unfavorable inference from Haggerty’s failure to testify (see People v Davis, 58 NY2d 1102, 1104 [1983]).
We have considered and rejected defendants’ arguments concerning the best evidence rule (see generally Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644 [1994]). Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902774/ | Mahoney, P. J.
Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered May 29, 1984, upon a verdict convicting defendant of *867the crimes of criminal possession of a forged instrument in the second degree (three counts) and grand larceny in the third degree (three counts).
Defendant, an employee in the mailroom located in the Alfred E. Smith Building in the City of Albany, was suspected of removing returned checks of three deceased State retirees, forging their signatures as endorsements, endorsing the checks with his own name and negotiating the checks. In November 1983, when two State Police Investigators attempted to interrogate defendant concerning the checks, he struck one of the officers and attempted to run away. Defendant was apprehended and read his Miranda warnings. Subsequently, defendant moved to suppress, inter alia, statements he made at the time of his arrest. The motion was denied. A Sandoval hearing resulted in a determination that no inquiry into defendant’s prior convictions would be permitted except for one resisting arrest conviction in 1983.
At trial, three bank tellers each testified that they had cashed the respective checks and had examined the identification photos presented by defendant on each occasion, and that the picture on the identification card had matched the man presenting them. Further, the People presented an expert witness who testified that the signatures on the three checks in question and those on other documents signed by defendant were identical. Defendant was convicted of three counts of criminal possession of a forged instrument in the second degree and three counts of grand larceny in the third degree. He was sentenced to consecutive prison terms of 2Vs to 7 years on each of the forged instrument counts and consecutive prison terms of lVa to 4 years on the grand larceny counts, the latter three terms to run concurrently with the former three terms. Defendant appeals.
Initially, we reject defendant’s argument that the People failed to prove each and every element of the offenses charged beyond a reasonable doubt. Defendant deliberately, and with intent to defraud, deceive and injure another, altered forged instruments of a kind specified in Penal Law § 170.25. Further, Penal Law § 170.10 (1) indicates that a falsely completed or altered commercial instrument would constitute a forged instrument within the meaning of Penal Law § 170.25.
Next, we reject defendant’s contention that the evidence, which was circumstantial, did not establish his guilt to a moral certainty. The standard of review of the legal sufficiency of the evidence where a conviction is based wholly on circumstantial evidence is whether the facts from which the *868inference of the defendant’s guilt was drawn were inconsistent with the defendant’s innocence and excluded to a moral certainty every other reasonable hypothesis (People v Giuliano, 65 NY2d 766, 767-768; People v Marin, 65 NY2d 741, 742). Here, the evidence clearly shows that defendant had access to the checks in question, that defendant endorsed the checks and that the bank tellers in each instance compared the photograph on the identification presented with the presenter. Such proof provides a sufficient basis for concluding that the jury’s determination was proper.
Next, defendant’s contention that he was deprived of a fair trial due to the People’s use of a prior conviction to impeach his credibility is without foundation. County Court’s ruling on defendant’s Sandoval motion excluded 2 of the 3 convictions sought to be introduced by the People, permitting only the use of defendant’s prior conviction of resisting arrest. Additionally, since the instant case does not concern a charge of resisting arrest, the prior crime need not be excluded as being similar to that currently charged (see, People v Bowden, 104 AD2d 695). Finally, a conviction for resisting arrest goes to credibility since it evidences a tendency to place personal above societal interest (see, People v Bennette, 56 NY2d 142, 148).
We have examined defendant’s remaining contentions and find them to be without merit.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902953/ | Order, Supreme Court, New York County (Eve Preminger, J.), entered on January 27, 1988, unanimously affirmed, without costs and without disbursements. (Cfi, Corradino v Corradino, 48 NY2d 894.) Concur — Kupferman, J. P., Sullivan, Kassal and Rosenberger, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826250/ | ORDER
FUTEY, Judge.
This case is presently before the court on plaintiffs “Motion to Certify Case as a Class Action.” The complaint asserts that the United States has “afforded [plaintiff and the proposed class members] less than full benefits granted under the Leave Act, ...” in violation of the Fifth Amendment. For the reasons stated hereinafter, plaintiffs motion for class certification is denied.
Factual Background
Plaintiff, Marvin Outright, was a court reporter for the United States district courts continuously from September, 1958, to October, 1986. Upon retirement plaintiff requested benefits from the Administrative Office of the United States Courts (Administrative Office)1 to which he alleges an entitlement under the Annual and Sick Leave Act (Leave Act), 5 U.S.C. § 6301 et seq. (1982)2. The Administrative Office responded to Outright’s request in a letter dated March 3, 1987, informing him that until 1984, all court reporters had been *577considered intermittent federal employees and were therefore excepted from accruing benefits under the Leave Act. In 1984, those court reporters placed on regular tours of duty (i.e. fixed hours specified in advance) earned annual leave pursuant to policy set by the Judicial Conference of the United States (Judicial Conference)3. In accordance with this policy the offices of the clerks of the court were instructed to maintain leave records for court reporters with regular tours of duty. Outright was advised by the Administrative Office to send his leave records for processing in order to pay any annual leave to which he was entitled4.
The present suit contends that the policy which excepts certain government workers from the benefits of the Leave Act violates the Fifth Amendment. Plaintiff brings this action “on behalf of [himself and] all present and former judicial system employees who have been afforded less than full benefits granted under the Leave Act.” The proposed class members include: court reporters; bankruptcy judges; United States magistrates; law clerks; judicial secretaries; magistrates’ secretaries; and, magistrates’ clerical assistants. Plaintiff requests class certification be granted, asserting: (1) the class is so numerous that joinder would be impractical, (2) common issues predominate, (3) there is a risk of inconsistent adjudications, (4) he can adequately represent the interests of the class, and (5) a class action would serve the interests of justice.
Oral argument on the motion for class certification was heard by this court on August 2, 1988.
Discussion
Pursuant to 28 U.S.C. § 2503(b) (1982), the Claims Court is authorized to promulgate rules of practice and procedure. In 1982, upon creation of this court, rules of procedure were adopted, Rules of the United States Claims Court (RUSCC), which incorporated the Federal Rules of Civil Procedure (FRCP), to the extent that they could appropriately be applied to procedures in this court. The class action rule adopted by the court, RUSCC 23, set forth specific criteria for determining when class actions should be maintainable.
Effective February 15, 1984, RUSCC 23 was substantially amended to read as follows:
A motion to certify a class action shall be filed with the complaint and comply with Rule 3(c), with service to be made as provided in Rule 4. The court shall determine in each case whether a class action may be maintained and under what terms and conditions.
This current version of RUSCC 23 provides for a case by case determination of the propriety of granting class certification. Although the rule does not specify standards for granting certification, this court is guided by the decisions of the Court of Claims which are binding precedent on the United States Claims Court. General Order No. 1, 1 Cl.Ct. xxi (1982).
The criteria enunciated in Quinault Allottee Ass’n v. United States, 197 Ct.Cl. 134, 453 F.2d 1272 (1972), have been accepted by this court as proper standards for determining class certification. Crone v. United States, 210 Ct.Cl. 499, 515, 538 F.2d 875, 884 (1976); Clincher v. United States, 205 Ct.Cl. 8, 11, 499 F.2d 1250, 1252 (1974) cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975); Saunooke v. United States, 8 Cl.Ct. 327, 331 (1985); O’Hanlon v. United States, 7 Cl.Ct. 204, 206 (1985). The Quinault court, partially employing FRCP 23, set forth eight criteria as follows:
(i) [T]he [members] constitute a large but manageable class, (ii) there is a question of law ... common to the whole class, (iii) this common legal issue is a predominant one overriding separate factual issues affecting the individual members, (iv) the claims of the present plain*578tiffs are typical of the claims of the class, (v) the Government has acted on grounds generally applicable to the whole class, (vi) the claims of many [members] are so small that it is doubtful that they would be pursued other than through [a class action], (vii) the current plaintiffs will fairly and adequately protect the interests of the class without conflict of interest, (footnote omitted) and (viii) the prosecution of individual actions by members of the class, some in district courts and some in this court, would create a risk of inconsistent or varying adjudications.
Quinault, 197 Cl.Ct. at 140-41, 453 F.2d 1272.
The Claims Court and its predecessor have “generally disfavored” granting class certification, reserving this procedural technique for “extraordinary cases.” O’Hanlon, 7 Cl.Ct. at 206. This predilection against class actions stems from practical considerations founded in the unique jurisdiction of this court. Saunooke, 8 Cl.Ct. at 329-30.
Plaintiff asserts that common questions of law and fact predominate over individual issues affecting the proposed class members. He alleges that the predominant issue is whether the proposed class members have been denied Leave Act benefits. However, the individual issues in this case are overriding. Entitlement to these benefits is contingent upon facts which vary for each of the different types of government employees.
The proposed class members have been excluded from coverage pursuant to exceptions of the Leave Act and policies of the Judicial Conference. Part-time employees with irregular hours and Presidential appointees are specifically excluded under the provisions of the Leave Act5. Although not falling within the Presidential appointee exception, magistrates and bankruptcy judges6 were excluded from the Leave Act until 1987, under policy set by the Judicial Conference. See L. Ralph Mecham, Memorandum to all United States Judges and Magistrates (Nov. 27, 1987). From 1949 to 1983, the Judicial Conference authorized each Article III judge to elect whether his or her personal staff would be covered by the Leave Act. Report of the Proceedings of the Judicial Conference of the United States, at 57 (September 18-19, 1986). In September 1983, the Judicial Conference approved a policy that placed all new secretaries to judicial officers under the Leave Act. Report of the Proceedings of the Judicial Conference of the United States, at 50 (September 21-22, 1983). In 1987, all law clerks were also given the option of coverage. See L. Ralph Mecham, Memorandum to all Bankruptcy Judges and Magistrates (April 10,1987); L. Ralph Mecham, Memorandum to all Article III and Claims Court Judges (April 15, 1987). Moreover, secretaries and law clerks who had previously worked regular tours of duty were entitled to Leave Act benefits prior to this policy change. See Cain v. United States, 77 F.Supp. 505 (N.D.Ill.1948).
Furthermore, under 5 C.F.R. § 630.101 (1988), the head of an employing agency is responsible for administering the Leave Act and maintaining records. Each of plaintiffs proposed employment classes have Leave Act benefits administered by a different authority.7
*579In granting class certification common factual issues should be weighed more heavily than common legal issues. Cooke v. United States, 1 Cl.Ct. 695, 698 (1983). In the case at bar, separate factual evaluations would be necessary to determine in which instances, if any, relief would be appropriate. “Where factual issues are not common among numerous potential plaintiffs, the class action is of no greater value than repetitive lawsuits, since under either form of proceeding separate determinations of each factual issue would remain necessary.” Saunooke, 8 Cl.Ct. at 332. Due to the lack of common factual issues, plaintiff could not adequately represent the proposed class.
Class certification should not be granted unless it will “serve the interests of justice.” Cooke, 1 Cl.Ct. at 698. The present case warrants individualized attention which would not be possible if it were to proceed as a class action. Thus, this court finds that class certification in this instance would not serve those interests.
Additionally, plaintiff has failed to satisfactorily show the number of members in his proposed class. The initial complaint states that the class “number[s] several thousand”. Plaintiff subsequently estimated that approximately five thousand persons would fall within the proposed class. However, no evidence has been presented to support this claim. Allegations of the size of a proposed class are insufficient to satisfy the requirement of numerosity. Saunooke, 8 Cl.Ct. at 333.
Although claims from the proposed class members may be filed in either the Claims Court or a federal district court depending on the jurisdictional amount, this will not give rise to inconsistent adjudications. All Tucker Act claims are appealed to the United States Court of Appeals for the Federal Circuit. 28 U.S.C. § 1295 (1982). Therefore, there is “no danger of a split among the circuits.” O’Hanlon, 7 Cl.Ct. at 207.
Conclusion
For the foregoing reasons, plaintiffs motion for class certification is denied.
IT IS SO ORDERED.
. Pursuant to 28 U.S.C. § 604(a)(1) (1982), the Administrative Office has responsibility to "[s]upervise all administrative matters relating to the offices of clerks and other clerical and administrative personnel of the courts....”
. Federal employees covered by the Leave Act earn a specific number of hours of sick and annual leave each pay period based on years of service. Upon departure from government service employees are entitled to a lump sum payment for accumulated annual leave. Sick leave may be credited towards civil service retirement annuity, but is not calculated into the lump sum payment.
. Under 28 U.S.C. § 753 (1982), court reporters are appointed and employed by the district courts subject to the supervision of the Judicial Conference.
. This court’s record is void of evidence of whether Cutright forwarded any records for processing.
.The Leave Act applies to all federal employees with thirteen enumerated exceptions, including part-time workers and Presidential appointees. In pertinent part 5 U.S.C. § 6301(2) (1982) states:
[An] “employee” [for purposes of the Leave Act] does not include—
(ii) a part-time employee who does not have an established regular tour of duty during the administrative work week;
(xiii) an officer in the legislative or judicial branch who is appointed by the President.
. Pub.L. 98-353, title I, § 104(a), 98 stat. 336 (as codified at 28 U.S.C. § 152) effective July 10, 1984, provides for appointment of bankruptcy judges by the court of appeals for each circuit.
. Bankruptcy judges have Leave Act benefits administered by the Court of Appeals, 28 U.S.C. § 152 (Supp. III 1983-1986), magistrates by the district court, 28 U.S.C. § 631 (1982), secretaries and law clerks for circuit judges, district judges, claims court judges, bankruptcy judges and United States magistrates by their respective courts, 28 U.S.C. §§ 712, 752, 794, 156, 635 (1982 & Supp. III 1983-1986), clerical and other *579employees of the Court of International Trade by that court, 28 U.S.C. § 871 (1982), and official court reporters by the Judicial Conference, 28 U.S.C. § 753 (1982). | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902775/ | Harvey, J.
Appeal from a judgment in favor of the State, entered April 8, 1986, upon a decision of the Court of Claims (Hanifin, J.).
Claimant, an inmate at Elmira Correctional Facility, was seriously injured when he was struck by another inmate with a lead pipe. He has made a claim against the State alleging *869negligence on the part of prison officials. In a bifurcated trial, the Court of Claims concluded that the State was negligent in failing to prevent an assault against claimant, the risk of which the State was or should have been reasonably aware. However, the Court of Claims found that claimant’s act of turning his back to his assailant constituted unforeseeable conduct under the circumstances and, therefore, was the superseding cause of claimant’s injuries, thus relieving the State of liability based upon its prior negligence.
We concur in the finding of the Court of Claims as to the State’s negligence but disagree as to its finding of a superseding cause. The doctrine of a superseding cause requires an "intermediate cause disconnected from the primary fault, and self-operating, which produced the injury” (Milwaukee & St. Paul Ry. Co. v Kellogg, 94 US 469, 475; see, Leeds v New York Tel. Co., 178 NY 118, 121). It is clear that only extraordinary and unforeseeable events would operate to relieve the State from liability (see, Carlock v Westchester Light. Co., 268 NY 345, 350; Monell v City of New York, 84 AD2d 717, 718). Claimant’s behavior was foreseeable under the circumstances as he was "staying] cool, stayfing] away from the other inmates” as directed by a correction officer. Claimant said he so acted because he was of the belief that the correction officer had done what he had said he would do to prevent a confrontation. The assumption of a noncombative position, with the hope it might reduce the hostility of the assailant, cannot be characterized as the extraordinary and unforeseeable conduct required to constitute a superseding cause.
Judgment reversed, on the law and the facts, with costs, and matter remitted to the Court of Claims for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Weiss, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902776/ | Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered January 24, 1986, convicting defendant upon his plea of guilty of the crime of conspiracy in the fourth degree.
Appeal dismissed (see, People v Lester, 137 AD2d 871 [decided herewith]; People v Harvey, 124 AD2d 943, 944, lv denied 69 NY2d 746). Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902777/ | Kane J.
Appeal, by permission, from an order of the County Court of Albany County (Turner, Jr., J.), entered August 14, 1986, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of criminal sale of a controlled substance in the third degree (three counts) and criminal sale of a controlled substance in the fifth degree (two counts), without a hearing.
Defendant alleges that he was denied effective assistance of counsel in that his trial attorney did not properly prepare his case and did not interview certain witnesses that defendant *870claims were important to his case. He makes his argument by way of a CPL 440.10 motion and he has submitted a sworn affidavit from his wife, as well as two unsworn letters written by his trial attorney, to support his argument. County Court denied defendant’s motion without a hearing. Noting that this court had previously rejected defendant’s argument of ineffective assistance of counsel on his direct appeal (see, People v Hammond, 116 AD2d 766, 767, lv denied 67 NY2d 943), County Court found that "defendant’s extra-record submissions do not contain any significant additional showing”. We agree with the court’s decision and, accordingly, affirm.
While defendant previously made this argument on direct appeal, his current allegation is based on facts outside the record, therefore making the instant proceeding pursuant to CPL 440.10 proper (see, People v Robinson, 122 AD2d 173, 175, lv denied 68 NY2d 1003; People v Welch, 108 AD2d 1020, 1021). Nevertheless, his papers fail to allege sufficient facts to support his claim and are conclusory in nature (see, CPL 440.30 [4]; People ex rel. Dixon v Smith, 112 AD2d 50, lv denied 65 NY2d 610). The sworn statement of defendant’s wife states only that she "had personal knowledge that would have been useful” had she been interviewed. No factual basis is given to support this assertion. Additionally, the reason that defendant’s attorney first met with defendant before jury selection was due to the fact that he was replacing defendant’s previous attorney. In one of his letters, the attorney indicates that no motions were made because the previous attorney had already made them. With respect to interviewing witnesses, defendant’s attorney, in his second letter, states that they would have given only hearsay evidence. Aside from the fact that both these letters are unsworn, they offer no support for defendant’s argument. Therefore, defendant has made no showing "that the nonrecord facts sought to be established are material and would entitle him to relief’ (People v Satterfield, 66 NY2d 796, 799). Accordingly, County Court properly denied the motion without a hearing.
Order affirmed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902778/ | Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered December 19, 2011, convicting defendant John F. Haggerty, Jr., after a jury trial, of grand larceny in the second degree and money laundering in the second degree and sentencing him to an aggregate term of lVs years, with $750,000 in restitution, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5). Judgment, same court, Justice and date, convicting defendant Special Election Operations, LLC of money laundering in the second degree, and imposing a conditional discharge, unanimously affirmed.
The verdict was based on legally sufficient evidence, and there was no unlawful variance between the indictment and the proof. The indictment, the proof at trial, the prosecutor’s summation and the court’s instructions were all based on the theory that defendant Haggerty stole money from Mayor Bloomberg by making false representations that the money that the Mayor transferred to the Independence Party would be used for an extensive ballot security operation costing about $1.1 million. *439Although the Mayor could not have controlled how the Independence Party used that money, the theft was committed when Haggerty used false representations to cause the Mayor to transfer the money to the Party. While Haggerty also deceived the Independence Party into believing that it was paying a vendor for ballot security services when it transferred the money to Haggerty’s shell corporation, the Mayor remained the true victim of Haggerty’s deception. Accordingly, the evidence established a theft from the Mayor, as charged in the indictment (compare People v Grega, 72 NY2d 489 [1988]). Haggerty’s assertion that the jury convicted him on an improper theory is based on speculative inferences from jurors’ notes.
Since the transfer of the money from the Mayor to the Independence Party was the larceny, the evidence also proved defendants’ guilt of money laundering, based on the transfer of the proceeds of the larceny from the Independence Party to the shell corporation. The evidence supports the conclusion that the transfer was designed in whole or in part to “conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds” of the preexisting larceny (Penal Law § 470.15 [1] [b] [ii] [A]).
The court properly exercised its discretion in denying defendants’ mistrial motion, made when the prosecutor addressed a remark to the court during a colloquy on a matter of law, but within the hearing of the jury, that impinged on Haggerty’s right to refrain from testifying. The jury is presumed to have followed the court’s prompt curative instruction, as well as its other instructions to draw no unfavorable inference from Haggerty’s failure to testify (see People v Davis, 58 NY2d 1102, 1104 [1983]).
We have considered and rejected defendants’ arguments concerning the best evidence rule (see generally Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644 [1994]). Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902779/ | Casey, J.
Appeal from a judgment of the County Court of Warren County (Moynihan, Jr., J.), rendered October 21, 1986, upon a verdict convicting defendant of the crime of rape in the first degree.
Defendant was indicted for, and found guilty after trial of, *871the crime of rape in the first degree in violation of Penal Law § 130.35 (3). The rape occurred when defendant, a 38-year-old married parent, engaged in an act of sexual intercourse with a female then seven years of age. Although defendant’s prior criminal record was relatively minor, involving two prior convictions for driving while intoxicated (which occurred 14 and 5 years before this offense), a three-year-old misdemeanor (marihuana sale) and a 1977 assault dismissed as a family dispute, County Court imposed the maximum punishment of 816 to 25 years in prison.
Defendant limits his appeal to the claimed excessiveness of the sentence. In the circumstances, we find the punishment justified, with no abuse of discretion by County Court; accordingly, we affirm the judgment of conviction.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6495494/ | 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
In re: YAHOO! INC. CUSTOMER No. 20-16633
DATA SECURITY BREACH
LITIGATION, D.C. No. 5:16-md-02752-LHK
______________________________
RONALD SCHWARTZ; et al., MEMORANDUM*
Plaintiffs-Appellees,
AARON MILLER,
Objector-Appellant,
v.
YAHOO! INC.; AABACO SMALL
BUSINESS, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted February 16, 2022
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,** District Judge.
This appeal stems from a class action complaint alleging that Yahoo! Inc.
and Aabaco Small Business, LLC (collectively, Yahoo) failed to employ sufficient
security measures to protect class members’ personal information, resulting in
multiple data breaches. The data breach impacted approximately 194 million
users.
The parties reached a settlement agreement, which included the provision of
credit monitoring services, to be administered by AllClear ID. Objector Aaron
Miller (Miller) challenged these services, arguing, in relevant part, that: AllClear
ID is ineffective because it is the subject of numerous consumer complaints, and
the Attorneys’ fees award should be reduced to reflect the actual (lesser) value of
the settlement. The district court overruled Miller’s objections. Miller timely
appealed.
Miller argues that: (1) the district court failed to analyze prior complaints
against AllClear ID using the appropriate “Higher Standard of Fairness” analysis;
and (2) “the attorneys’ fees awarded should be reduced proportionately to the value
**
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
2
of the settlement” in light of the limited (true) value amount of the credit
monitoring services.
A district court may, in its discretion, approve a class action settlement that
is “fair, reasonable, and adequate.” In re Volkswagen “Clean Diesel” Mktg., Sales
Practices, & Prods. Liab. Litig., 895 F.3d 597, 606 (9th Cir. 2018) (citation
omitted). “Appellate review of the district court’s fairness determination is
extremely limited, and we will set aside that determination only upon a strong
showing that the district court’s decision was a clear abuse of discretion.” Lane v.
Facebook, Inc., 696 F.3d 811, 818 (9th Cir. 2012) (citation and internal quotation
marks omitted).
1. Miller’s assertion that AllClear ID was ineffective as a credit monitoring
service did not render the settlement inadequate. We have held that “a district
court’s only role in reviewing the substance of [a] settlement is to ensure that it is
fair, adequate, and free from collusion.” Id. at 819 (citation and internal quotation
marks omitted). The district court’s recognition that AllClear ID possessed an A+
rating from the Better Business Bureau, maintained a 96% customer satisfaction
rating, had a 100% success rate in resolving financial identity theft cases, and
supplied credit monitoring to over two million individuals around the world
supported the court’s approval of the settlement. See id.
3
Miller’s reliance on the purported inadequacy of AllClear ID’s credit
monitoring services also ignores the alternative remedy of cash payouts to
individuals who already have credit monitoring or identity protection, who have
demonstrated out-of-pocket losses, including loss of time, or who paid for Aabaco
Small Business services and Yahoo Mail services.
2. Miller contends that the value of the credit monitoring services
disproportionately increased the attorneys’ fees award, and urges us to remand this
case to the district court to determine whether the actual value of the credit
monitoring services adequately supports an award of attorneys’ fees to class
counsel. The district court addressed Miller’s concern by agreeing that “the retail
value of the [c]redit [s]ervices should not inflate the Settlement Fund for the
purposes of the attorneys’ fee analysis.” However, the court noted that “most of
the Settlement Class Members have opted for Alternative Compensation” and
“declined to treat the Settlement Fund as larger because of the alleged surplus
value created by Yahoo’s lump sum purchase of the Credit Services.” Under these
circumstances, Miller failed to demonstrate that the district court’s assessment
lacked fairness, was inadequate, or resulted in collusion among the parties. See id.
AFFIRMED.
4 | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902781/ | Weiss, J.
Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered October 28, 1986, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a forged instrument in the second degree.
Pursuant to a negotiated bargain, defendant pleaded guilty to a reduced charge of attempted criminal possession of a forged instrument in the second degree and was sentenced to an indeterminate term of 1 to 3 years’ imprisonment. The charge related to the possession of a forged prescription slip for Sanorex, a controlled substance. Defendant’s sole contention, that the sentence was harsh and excessive, is unpersuasive. The sentence was within the scope of the statutory guidelines and the plea bargain. We note that during the initial plea allocution, County Court indicated that, all things being equal, a sentence of five years’ probation would be imposed. Upon reviewing the presentence report, however, the court rescinded that proposal and offered defendant an opportunity to withdraw his plea. Although the minutes of that proceeding have not been included in the record, the ultimate sentencing minutes confirm that defendant opted not to withdraw his guilty plea, but accepted an alternative sentence of 1 to 3 years in prison. No challenges to this alternative plea have been made.
While we have thus reviewed the merits of defendant’s appeal, we take note that during the plea allocution, defendant, through his attorney, expressly waived his right to *872appeal. Surprisingly, however, neither party has addressed the consequences of such a waiver, but simply proceeded to an assessment of defendant’s excessive sentence claim. It is difficult to comprehend why the waiver has been ignored by both parties upon this appeal. At the very least, having secured or acceded to the inclusion of a waiver within the terms of the plea bargain, it was incumbent upon the District Attorney to inform this court of the event. We recognize that the waiver colloquy was exceedingly brief. However, since there is no indication that the waiver was other than knowing and voluntary, it should be given effect and the appeal dismissed (see, People v Harvey, 124 AD2d 943, 944, lv denied 69 NY2d 746). In so deciding, we do not mean to suggest that a sentencing court may invoke an across-the-board waiver in every negotiated plea , situation. Sentencing is a matter of discretion dictated by the facts of the individual case confronted. Whether a waiver of the right to appeal should be invoked necessarily depends on the circumstances peculiar to each case.
Appeal dismissed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902783/ | Yesawich, Jr., J.
Appeal from an order of the Supreme Court (Harlem, J.), entered December 18, 1986 in Otsego County, which, inter alia, granted defendant Linda A. Simons’ cross motion to dismiss the complaint against her due to lack of personal jurisdiction.
Plaintiff commenced this action to recover for damages occasioned by a fire allegedly negligently caused by defendants. Shortly before the expiration of the Statute of Limitations, service by personal delivery upon defendant Linda A. Simons at her Washington, D.C., home was attempted by a process server posing as a delivery man. The summons and complaint, contained in a sealed, legal-sized envelope and addressed to Simons, were accepted by Simons’ roommate, who signed Simons’ name to the signature card; she did so believing she would not be permitted to accept delivery in her own name and because Simons was already at work. The process server claims the roommate twice verbally represented that she was Simons; the roommate denies this.
*874Following a hearing on plaintiffs motion to strike Simons’ affirmative defenses of lack of personal jurisdiction and Statute of Limitations and Simons’ cross motion to dismiss the complaint against her based on those affirmative defenses, Supreme Court granted the cross motion and plaintiff appeals. Inasmuch as this was a singular event for the roommate, and not so for the process server who performed this task about 100 times a week, Supreme Court credited the roommate’s version. We affirm.
This is another instance pointing up the hazard of relying solely on in-hand service (CPLR 308 [1]) shortly before the Statute of Limitations is to expire (see, e.g., Donaldson v Melville, 124 AD2d 361, lv denied 69 NY2d 604). Plaintiff argues that its service comes within the narrow exceptions to the need for strict compliance with CPLR 308 (1) because the process server acted reasonably and Simons received actual notice when she arrived home and opened the envelope (see, Matter of Shedlin v State Tax Commn., 62 AD2d 806, 808-809; see also, Daniels v Eastman, 87 AD2d 882, 883). The applicability of Shedlin is doubtful since it concerns CPLR 312, which offers no alternative to personal delivery, and Daniels is of questionable validity in light of Macchia v Russo (67 NY2d 592, 594); as such, the instant case cannot be said to be within the reach of the redelivery exception, which in the factual posture presented is now limited to delivery made in the presence of the intended recipient (see, Donaldson v Melville, supra, at 362).
As for plaintiff’s contention that its service of process should be deemed valid because its process server acted reasonably, and failed only because of misrepresentation by Simons’ roommate, this is a disingenuous assumption to say the least for the process server feigned being a delivery man (see, McLaughlin, 1987 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:l [1988 Pocket Part], at 206, and cases cited therein; Siegel, NY Prac § 66, at 68). It suffices to note that Supreme Court credited the roommate’s version of what transpired and, more importantly, that there is no evidence Simons was responsible or accountable for her roommate’s conduct.
Order affirmed, without costs. Mahoney, P. J., Weiss, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902785/ | Kane, J.
Appeal from a judgment of the County Court *875of Columbia County (Leaman, J.), rendered January 21, 1987, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
Defendant was charged in two separate indictments with, inter alia, the criminal possession and sale of a controlled substance. The first indictment concerned a sale allegedly occurring on August 14, 1986 and the second indictment involved an alleged sale occurring on August 18, 1986. At an ensuing suppression hearing, the only witness to testify was Deputy Leonard Edwards, the person to whom defendant allegedly sold the drugs. Defendant did not testify and presented no witnesses on his behalf. Edwards testified that at about 7:20 p.m. on August 14, 1986, defendant, along with Sean Moore, arrived at Edwards’ home. Defendant pulled out a plastic bag filled with several packets and told Edwards, "I’ve got cocaine for sale. This is real good shit.” Edwards then paid defendant $300 for the packets. Edwards also testified that defendant told him that if Edwards arrested him, defendant would "blow my head off”. Subsequent to the suppression hearing, County Court refused to suppress defendant’s statements. Thereafter, in full satisfaction of all of the charges in both indictments, defendant pleaded guilty to the crime of the criminal sale of a controlled substance in the third degree. This appeal by defendant ensued.
Initially, defendant contends that County Court applied the incorrect standard of proof at the suppression hearing. We find this contention to be without merit. On a motion to suppress evidence, it is the defendant and not the People that have the burden of persuasion; the People have only the burden of going forward to show the legality of the police conduct in question (People v Di Stefano, 38 NY2d 640; see, People v Love, 57 NY2d 998). Upon our review of the record we find that County Court properly enunciated the above proposition of law and that there is no evidence to support defendant’s claim that the court applied an incorrect standard of proof in reaching its decision.
Next, defendant claims that Edwards’ testimony was contradictory in that on direct examination Edwards testified that defendant made his statements after the sale, but that on cross-examination he testified that the sale occurred after he told defendant he would not arrest him. However, a review of the testimony reveals that defendant’s attorney had been questioning Edwards as to both the August 14, 1986 sale and the August 18, 1986 sale and, therefore, it was unclear in Edwards’ answers as to which transaction he was testifying to. *876On redirect examination, Edwards was asked specifically about the August 14, 1986 sale and he again reaffirmed that it was not until after that sale that he told defendant he was a police officer and that he would not arrest him. Thus, there was no conflict in the testimony as defendant claims. At best, there may have been a conflict of inferences to be drawn therefrom, the choice of which was for the trier of facts and should be honored unless unsupported as a matter of law (see, People v Smith, 104 AD2d 682). We find that County Court was empowered to conclude on the basis of the evidence before it that the People offered sufficient evidence to sustain their burden (see, People v Di Stefano, supra).
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902787/ | Weiss, J.
Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered December 10, 1986, convicting defendant upon his plea of guilty of the crime of attempted sodomy in the second degree.
Pursuant to a negotiated plea bargain, defendant pleaded guilty to a reduced charge of attempted sodomy in the second degree and was thereafter sentenced to an indeterminate term of 116 to 4 years’ imprisonment. On this appeal, defendant first maintains that the plea allocution was factually inadequate. Having failed to move to withdraw his plea or to vacate the conviction, this issue has not been preserved for review (see, People v Robideau, 133 AD2d 903). In any event, the record confirms that the plea was knowingly and voluntarily entered into with the advice of counsel (supra).
Defendant further contends that the sentence was erroneously premised on information presented in the presentence report that he suffered from acquired immune deficiency syndrome (AIDS) and that it was unclear whether he was aware of this condition at the time of the subject incident. The *877sentencing minutes confirm that defense counsel had an opportunity to review this report and yet voiced no objection. Nor did defendant object. Moreover, County Court specifically stated that the AIDS question was not a factor in its sentencing determination, which was based on the nature of the actual crime. Accordingly, we perceive no impropriety.
Defendant’s claim of ineffective assistance of counsel, grounded on the assertion that counsel failed to move to disqualify the prosecuting attorney who ostensibly represented him on an unrelated matter in 1980, is also unavailing. There is no basis in this record indicating that defendant was entitled to any such relief, for no actual prejudice has been demonstrated (see, Matter of Schumer v Holtzman, 60 NY2d 46, 55). We are otherwise convinced that meaningful representation was provided. Finally, the sentence imposed was clearly not excessive.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823526/ | —Meter. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902791/ | Order, Supreme Court, New York County (Joan A. Madden, J), entered April 13, 2011, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to dismiss the causes of action seeking judicial dissolution and appointment of a receiver, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiffs allegations that he has been systematically excluded from the operation and affairs of the company by defendants are insufficient to establish that it is no longer “reasonably practicable” for the company to carry on its business, as required for judicial dissolution under Limited Liability Company Law § 702. The allegations do not show that “the management of the entity is unable or unwilling to reasonably permit or promote the stated purpose of the entity to be realized or achieved, or [that] continuing the entity is financially unfeasible” (see Matter of 1545 Ocean Ave., LLC, 72 AD3d 121, 131 [2d Dept 2010]; Schindler v Niche Media Holdings, 1 Misc 3d 713, 716 [Sup Ct, NY County 2003]). Indeed, the allegations show that the company has been able to carry on its business since the alleged expulsion of plaintiff in 2007; the allegation that defendants failed to pay plaintiff his share of the profits and award him distributions shows that the company is financially feasible.
In view of the foregoing, there is no occasion for the appoint*441ment of a receiver (see Limited Liability Company Law § 703). We note that plaintiff admits that he can seek appointment of a temporary receiver under CPLR 6401 (a), given his remaining causes of action. Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902792/ | Order, Family Court, Bronx County (Allen Alpert, J.), entered on or about October 4, 2011, which denied respondent-appellant father’s objection to an order, same court (Ann Marie Loughlin, Support Magistrate), entered on or about June 14, 2011, denying his motion to vacate an order, same court (Robert Mulroy, Support Magistrate), entered on or about January 25, 2010, which dismissed with prejudice his petition to terminate the order of child support that requires him to pay $95 per week, plus arrears, unanimously affirmed, without costs.
The court erred in its determination that the objection was untimely, because the record before this Court does not establish that the order denying the father’s motion to vacate was served with notice of entry (see Matter of Belolipskaia v Guerrand, 65 AD3d 932 [1st Dept 2009]).
In any event, the father was not entitled to court-appointed counsel on his petition to terminate the order of support (see Family Ct Act § 262 [a]; cf. Matter of Scott v Scott, 62 AD3d 714, 715 [2d Dept 2009]).
In addition, Support Magistrate Mulroy properly found that the father did not establish that the subject child resided with the paternal grandmother, and not petitioner-respondent mother, during the relevant time period (see generally Matter of Jennifer H.S. v Damien P.C., 50 AD3d 588, 588 [1st Dept 2008], lv denied 12 NY3d 710 [2009]).
The father’s argument, raised for the first time on appeal, that the Family Court should have retroactively reduced his support arrears, is not properly before this Court. Indeed, the father’s argument should be made in an enforcement proceeding or in a petition to modify child support, not in a proceeding to terminate the support obligation completely, which is the only proceeding before this Court on appeal.
We have considered the father’s remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902793/ | Weiss, J.
Appeal from an order of the Supreme Court, (Keniry, J.), entered November 3, 1986 in Rensselaer County, which denied third-party defendants’ motion to dismiss the third-party complaint.
Plaintiff had retained third-party defendants, Andrew Capoccia and his law firm, to represent her in a personal injury action. In February 1985, after Capoccia was suspended from practice, plaintiff retained defendants. In January 1986, plaintiff rehired Capoccia, who had been reinstated, apparently only days before the expiration of the Statute of Limitations. Thereafter, plaintiff sued defendants for legal malpractice *881alleging that they refused, failed and neglected to represent or protect her legal rights and interests. Defendants served a third-party complaint upon third-party defendants seeking indemnification and alleging that if plaintiff suffered any loss by virtue of the expiration of the Statute of Limitations, if in fact the statute had expired, it was solely because of Capoccia’s malpractice. Third-party defendants thereafter moved to dismiss the third-party complaint on grounds that it failed to state a cause of action and was jurisdictionally defective. Supreme Court denied the motion and third-party defendants have appealed. We affirm.
An attorney sued for malpractice is entitled to commence a third-party claim for contribution against a subsequent attorney whose negligence has contributed to or aggravated the plaintiff’s damages (Schauer v Joyce, 54 NY2d 1, 5; Catania v Lippman, 98 AD2d 826, 827). This same principle applies where, as here, a claim for indemnification is asserted (see generally, Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 26-27). Construing the third-party complaint liberally in defendants’ favor, we find that the pleading adequately states a cause of action for legal malpractice (see, Rosner v Paley, 65 NY2d 736, 738). Plaintiff has asserted that defendants abandoned her case just days before the Statute of Limitations would expire, intimating that an expiration of the statute subsequently occurred.* In their third-party complaint, defendants attribute the responsibility for any such default to Capoccia. Notably, the record confirms that Capoccia was retained within the statutory period. Third-party defendants’ assertion that plaintiff couched her complaint solely in terms of defendants’ negligence, without reference to a Statute of Limitations default, is simply not persuasive. Accordingly, Supreme Court properly refused to dismiss the third-party complaint.
Finally, we find no merit to third-party defendants’ claim that service was jurisdictionally defective for failure to annex copies of all prior pleadings (see, Wings & Wheels Express v Sisak, 73 Misc 2d 846, 848).
Order affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.
The representations in this third-party defendants’ brief that an action was actually commenced in a timely manner is not confirmed by the record. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902794/ | Harvey, J.
Appeal, by permission, from an order of the County Court of Rensselaer County *882(Dwyer, Jr., J.), entered September 8, 1987, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of murder in the second degree, robbery in the first degree and burglary in the first degree, without a hearing.
In August 1984, Benjamin Friedman’s body was found in his upstairs flat in the City of Troy, Rensselaer County. Several leather belts, an electric cord and a shirt were wrapped around his neck. A yarmulke was stuffed down his throat. During the ensuing murder investigation, Dawane Tripp became concerned that he might be a suspect. Thus, in an attempt to exculpate himself, he recorded a conversation between himself and Tara Showen, who apparently had been involved in activities surrounding Friedman’s death. Tripp had purportedly told the District Attorney’s office of his plan to make this tape, was directed to turn over any such tape to that office. Tripp thereafter turned the tape over to the former District Attorney for Rensselaer County, Charles Wilcox. The tape, of extremely poor quality, was sent to the audio laboratory of the Federal Bureau of Investigation for enhancement and returned in an electronically enhanced state. The tape was purportedly filed separately from defendant’s file.
In the meantime, defendant had been charged with several crimes, including murder, related to the death of Friedman. A copy of the tape was not provided to defendant. At his trial, Showen was called as a witness by the prosecution, and Tripp was call by the defense. Defense counsel attempted to impeach Showen’s credibility by referring to statements she had purportedly made to Tripp. Showen stated that she had fabricated the story she told Tripp to protect defendant, with whom she was "in love”, and denied making some of the statements Tripp attributed to her. The tape was never produced. Defendant was ultimately found guilty of murder in the second degree, robbery in the first degree and burglary in the first degree. An appeal was taken from his judgment of conviction and is currently pending before this court.
Subsequently, David Maynard was tried in Rensselaer County for several crimes related to Friedman’s death. During the course of Maynard’s trial, his counsel learned of the existence of the taped conversation between Showen and Tripp. Also at this time, the newly elected District Attorney, James Canfield, first learned of the existence of the tape and relayed this information to the attorney who had represented defendant. The instant CPL 440.10 motion seeking vacatur of defendant’s judgment of conviction ensued. Among the *883grounds argued in support of the motion was the assertion that the prosecution’s failure to turn over the tape was a violation of People v Rosario (9 NY2d 286, cert denied 368 US 866) and its progeny. County Court denied the motion upon the ground that the record contained sufficient facts for the issue to be reviewed upon direct appeal (see, CPL 440.10 [2] [b]). Defendant was granted permission to appeal.
Initially, we note that inasmuch as the primary issues raised involve matters not in the record on appeal from the trial, it was improper for County Court to deny defendant’s motion upon the authority of CPL 440.10 (2) (b). Indeed, on this appeal the People have not attempted to justify the denial upon that ground. Hence, the merits of defendant’s motion must be considered.
In People v Rosario (supra), the Court of Appeals held that once a witness testifies for the People, the prosecution is required to give defense counsel prior statements of that witness which relate to the witness’s testimony. This rule is not limited to statements made to police, the District Attorney or Grand Jury, but encompasses statements made to private parties (People v Perez, 65 NY2d 154, 158-159). The failure to turn over Rosario material is not subject to harmless error analysis (People v Novoa, 70 NY2d 490; People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56, 63). It is per se error, requiring reversal and a new trial (supra). The Court of Appeals has recently applied this per se rule to a judgment of conviction brought up for review via a CPL 440.10 motion (see, People v Novoa, supra).
We find that the tape constituted Rosario material. It contained a prior statement by a prosecution witness which was solely within the control of the District Attorney’s office. The statements on the tape were relevant to the witness’s testimony and were potentially useful for impeachment purposes. Defendant’s attorney affirmed that he was not aware of the existence of the tape until he was contacted by the District Attorney after defendant’s judgment of conviction had been rendered. The fact that the District Attorney may have inadvertently overlooked the existence of the tape does not excuse the failure to turn it over (see, People v Novoa, supra, at 499; People v Ranghelle, supra, at 63). Since the failure to turn over the tape to defense counsel violated the Rosario rule, our analysis is ended and, upon the authority of People v Novoa (supra), People v Jones (supra) and People v Ranghelle (supra), the judgment of conviction must be vacated and a new trial ordered.
*884Order reversed, on the law, motion granted, judgment of conviction vacated and matter remitted to the County Court of Rensselaer County for a new trial. Kane, J. P., Casey, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902796/ | Casey, J.
Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered March 29, 1985, upon a verdict convicting defendant of the crimes of arson in the first degree and attempted murder in the second degree (two counts).
Defendant’s conviction was based on his acting as an accessory (Penal Law § 20.00) in crimes committed by Jerry D. Hughes in the Village of Menands, Albany County. Hughes and defendant were both indicted for arson in the first degree, four counts of attempted murder in the second degree, and reckless endangerment in the first degree. Severance was ordered and, after trial, Hughes was convicted of arson in the first degree, a conviction which was affirmed by this court (People v Hughes, 124 AD2d 344).
The underlying facts reveal that at about 6:00 p.m. on May 20, 1984, Hughes entered a Cumberland Farms store located at the border of Menands and the City of Watervliet to call a cab because the yellow Vega automobile that he had been driving had become disabled at the Agway gas station across the street. Apparently, Hughes, a black man, acted belligerently when he entered the store and claims that a white employee at the store, Lisa Horton, uttered a racial slur against him. Hughes was asked to leave the store, which he did, but he returned to call his employer to say he would not be in to work. Hughes then waited for a cab at the gas station. When it arrived, he took the battery from the Vega with him. During the taxi ride to Albany, the driver heard Hughes state *885that he was going to get even with a lady in the store. The driver watched Hughes take the battery to a green Oldsmobile and put it into the car. Hughes then drove the Oldsmobile to defendant’s home to obtain defendant’s help in towing the Vega back to Albany.
Before leaving, defendant saw Hughes fill two bottles with gasoline and place them in the trunk of the Oldsmobile. Although the prosecution stressed this fact, defendant claims he thought Hughes was going to put gasoline into the Vega’s carburetor, as defendant had seen him do before, and this testimony was corroborated. Although defendant testified that Hughes brought a tow chain with him, an automobile mechanic stated that Hughes and defendant had driven to his garage to borrow such a chain, as Hughes had often done before. The mechanic stated that Hughes did not seem unusually upset at the time and did not mention the incident that had occurred earlier in the Cumberland Farms store. Although other testimony established that the Vega had been parked at the Menands Agway gas station, defendant told police that he and Hughes had retrieved it at a Pepsi-Cola plant located less than half a mile down the road from the gas station. Defendant contends that upon reaching the Pepsi-Cola plant, Hughes told him he would be right back, left on foot without further explanation and was gone for about 40 minutes. Defendant states that he drove the Oldsmobile to a nearby store searching for Hughes, drove back to the Vega and, after purchasing cigarettes, walked back to the Vega and heard sirens.
It appears that at about 9:00 p.m., Hughes had thrown a Molotov cocktail, apparently made from the gasoline he had brought, through the front window of the Cumberland Farms store. It landed near Horton, enveloping her in flames and severely injuring her. Jean Halpin, a customer, helped Horton out shortly before the front of the building exploded. Hughes returned to the disabled Vega and defendant towed it with the Oldsmobile to Albany. Hughes then asked defendant if he had heard sirens while in Menands and told defendant that the sirens were because of him.
After his conviction of arson in the first degree and two counts of attempted murder in the second degree, defendant was sentenced to concurrent terms of imprisonment of 25 years to life for the arson conviction and 8Va to 25 years for each of the attempted murder convictions.
On this appeal, defendant urges principally the legal insufficiency of the evidence to support his conviction as an accom*886plice of Hughes in the commission of the crimes. Penal Law § 20.00 provides in relevant part that: "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he * * * intentionally aids such person to engage in such conduct.” The evidence as to defendant’s intent is entirely circumstantial. Therefore, to be legally sufficient, the facts from which the inference of defendant’s guilt is drawn "must be inconsistent with the defendant’s innocence and must exclude to a moral certainty every other reasonable hypothesis” (People v Marin, 65 NY2d 741, 742). If consistent with either innocence or guilt, circumstantial evidence is of no value (People v Piazza, 48 NY2d 151). Even viewing the evidence in a light most favorable to the prosecution, as we must (see, People v Marin, supra), the evidence herein fails the test for legal sufficiency.
The prosecution would have us find that defendant must have known that the gasoline Hughes placed in the bottles and took with them was to be used as a Molotov cocktail. The explanation by defendant, corroborated by another witness, is as consistent with the fact that the gasoline was to be used to prime the carburetor of the disabled Vega. The prosecution would have us believe that bringing gasoline and a tow chain demonstrated that the crime was intended; that the Vega was towed from the Agway station to the Pepsi-Cola plant because it would not be so visible there when Hughes fled the store; and that it was highly unlikely that defendant did not know when Hughes left him and the cars that Hughes was going to throw the firebomb into the Cumberland Farms store. However, it is uncontroverted that defendant had no demonstrated motive to be angry at a store employee, as did Hughes. No fruits of any crime were shared by defendant or in his possession, and no proof was adduced that Hughes ever told defendant of his intentions. Therefore, even if defendant aided Hughes in the commission of the crimes, there is no showing that he did so with the specific intent to participate in or benefit from the crimes. Bringing both the gasoline and the tow chain is as consistent with an innocent intent to aid Hughes in retrieving his disabled vehicle as it is with an intent to aid him in the commission of a crime. Lacking a showing of the mental culpability needed to be found an accomplice, defendant cannot be so found. Even if defendant’s participation demonstrated criminal facilitation (see, People v Howard, 75 AD2d 1007, 1008), he could not be found guilty of *887that crime since it was not charged against him and is not a lesser included offense.
This decision renders defendant’s other arguments academic.
Judgment reversed, on the law, and indictment dismissed. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902797/ | Yesawich, Jr., J.
Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered September 20, 1985, upon a verdict convicting defendant of the crimes of grand larceny in the third degree and criminal possession of stolen property in the second degree.
Defendant was indicted, tried before a jury and convicted on the charges noted above for his part in the theft and sale of various consumer electronic devices from a Sears, Roebuck and Company department store in Horseheads, Chemung County. The evidence, viewed in the light most favorable to the prosecution, and the reasonable inferences to be drawn therefrom (see, People v Way, 59 NY2d 361, 365) disclose that defendant pilfered boxes of merchandise from the Sears store on the evening of December 26, 1984 while Pleasie Hughie, Curtis Grant and Rufus Brown waited for him in a car borrowed and operated by defendant. Thereafter, defendant and Hughie traveled about the City of Elmira selling or attempting to sell cassette stereos, videotape cassette recorders (VCRs) and an Atari computer; it was Hughie’s testimony that there were already several cassette stereos in the car prior to the larceny at the Sears store.
Local law enforcement officials recovered an Atari computer, a VCR and two cassette stereos, each of which was received in evidence after being identified by various witnesses as items they had purchased at substantial discounts, or received from defendant on or about the night of December 26, 1984. Hughie’s testimony respecting the sales of electronic items that were made that night, not necessarily the ones taken from the Sears store earlier that evening, was closely corroborated by those witnesses. All four exhibits were identified by Sears employees as product lines sold by the Horse-heads store at the time of the theft. The store manager testified that there was no record of defendant having purchased any of these items at the store and, significantly, that the address on the VCR box clearly identified it as a product that had indeed been in that particular Sears store.
*888Defendant’s primary argument is that the grand larceny charge should have been dismissed at the close of the prosecution’s case because the only evidence of the larceny, the testimony of Hughie, an accomplice as a matter of law, was uncorroborated (see, CPL 60.22 [1]). Although Grant also testified and substantially corroborated Hughie’s description of the larceny, he was put on the stand by the prosecution only as a rebuttal witness after defendant’s motion for a trial order of dismissal of the larceny charge had been denied.
The corroboration requirement is aimed at countering the inherent unreliability of accomplice testimony by requiring evidence of an independent nature tending to connect the defendant to the crime (People v Springer, 127 AD2d 250, 253, lv granted 70 NY2d 657). In this instance, that independent connecting evidence came in the form of testimony from the witness George Aaron to the effect that, several hours after the theft occurred, defendant left a VCR with him for later sale, a VCR which the Horseheads store manager subsequently identified as having come from his store.
Defendant also maintains that the guilty verdict was against the weight of the evidence on both counts; he attacks the credibility of Hughie and Grant because of their prior criminal records, inconsistencies in their testimony, and the fact that Hughie’s testimony was concededly given in exchange for the District Attorney’s promise not to prosecute him for an unrelated shoplifting offense. However, the jury resolved these credibility questions, as well as the issue of defendant’s own credibility, against defendant and we, in our assessment of the evidence (see, People v Bleakley, 69 NY2d 490), find no basis for disturbing that determination.
Judgment affirmed. Kane, J. P., Weiss, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6129363/ | Barnard, P. L:
There was no issue made by the answer which required the plaintiff to prove the corporate existence of the defendant. The complaint averred that the defendant was a foreign corporation, incorporated under the laws of the kingdom of Denmark, and was a common carrier of passengers. The defendant appears in its own name, which apparently is a corporate name, and admits that “ it is a common carrier of passengers,” but “ denies, on its information and belief, that at the time mentioned in the complaint, or at any other time, the defendant was a foreign corporation as is alleged in the complaint.” The denial, such as it is, is not absolute, but upon information and belief, and especially fails to meet the real allegation. Was it a corporation under the laws of Denmark or of any other nation ? If Swedish, the allegation in the complaint that it was Danish would be of no relevancy. The denial is so framed that the defendant can be either a foreign or domestic corporation, formed in any country except Denmark. ,The only issue made is one of nationality of the corporation. The Code (§ 1776) requires an affirmative denial of the fact that the defendant is a corporation. The judgment is therefore right, and should be,affirmed, with costs.
Dtkman and Pratt, JJ., concurred.
Judgment and order denying new trial affirmed, with costs. | 01-03-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5907431/ | Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Kar alunas, J.), entered November 3, 2011. The order, among other things, granted the cross motion of defendant for summary judgment dismissing the complaint.
*1100Now, upon reading and filing the stipulation of discontinuance signed by the attorneys for the parties on January 11 and 25, 2013,
It is hereby ordered that said appeal is unanimously dismissed without costs upon stipulation. Present—Scudder, EJ., Fahey, Lindley, Valentino and Martoche, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902799/ | Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered April 6, 2011, convicting defendant, after a jury trial, of rape in the first degree, criminal sexual act in the first degree, and two counts of sexual abuse in the first degree, and sentencing him to an aggregate term of 10 years, unanimously affirmed.
Defendant’s claim that the victim’s statement to a police officer shortly after the crime did not qualify under the prompt outcry exception to the hearsay rule is unpreserved, as well as being expressly waived, and we decline to review it in the interest of justice. As an alternate holding, we find that the statement was properly admitted (see People v McDaniel, 81 NY2d 10, 17-18 [1993]). Regardless of whether defendant preserved a challenge to the victim’s later statement to another officer, and regardless of whether it was error to permit two witnesses to give essentially the same evidence, any error was harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]).
Defendant was not deprived of a fair trial by the prosecutor’s summation. The prosecutor did not shift the burden of proof by commenting on defendant’s failure to call witnesses who were defendant’s friends, and who would have been in a position to corroborate defendant’s testimony (see e.g. People v Kowlessar, 82 AD3d 417 [1st Dept 2011]; People v Cochran, 29 AD3d 365, 366 [1st Dept 2006], lv denied 7 NY3d 787 [2006]).
We perceive no basis for reducing the sentence. Concur— Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902801/ | Weiss, J.
Appeal from an order of the Family Court of Chenango County (Dowd, J.), entered June 17, 1986, which dismissed petitioner’s application, in a *891proceeding pursuant to Domestic Relations Law § 240, for custody of her child.
In October 1985, petitioner filed a petition for the custody of her natural son, then nine years of age. Previously, in April 1985, an order had been granted placing the child in the custody of his maternal grandparents, respondents herein. The child had been in foster care for approximately two years before respondents obtained custody on consent of the Schoharie County Department of Social Services, petitioner and the child’s Law Guardian. Following a hearing oh the instant petition, Family Court opted to continue custody with respondents, with reasonable visitation rights extended to petitioner. This appeal by petitioner ensued.
We affirm. The governing standard on a petition to modify a prior custody award remains the best interest of the child under the prevailing circumstances (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; Giordano v Giordano, 93 AD2d 310, 311). In rendering its decision, Family Court noted that the child was thriving in the care of his grandparents and that petitioner only sporadically exercised her visitation rights. Petitioner has not had custody of the child for several years and, as the hearing minutes show, has made little headway in altering her living situation. Although not dispositive, the Law Guardian recommended that respondents return custody. Given these circumstances, Family Court acted well within its discretion in continuing the present custodial arrangement (see, Eschbach v Eschbach, 56 NY2d 167, 173-174). Since the parties have been compatible with respect to visitation, the direction to continue "reasonable rights of visitation” was appropriate.
Order affirmed, without costs. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902802/ | Levine, J.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 21, 1987, convicting defendant upon his plea of guilty of the crime of operating a motor vehicle while under the influence of alcohol, as a felony.
In February 1985, defendant was indicted on two counts of operating a motor vehicle while under the influence of alcohol, as a felony, and one count of operating a motor vehicle while license is revoked. In June 1985, defendant accepted a plea bargain which permitted him to plead guilty to one count of operating a motor vehicle while under the influence of alcohol *892in exchange for a sentence of six months’ incarceration in the Ulster County Jail, five years’ probation, a $750 fine and temporary revocation of his license. Defendant absconded prior to sentencing and remained a fugitive for approximately 18 months. After he was apprehended defendant appeared for sentencing on January 21, 1987. At that time County Court informed defendant that, in light of the fact that he had absconded, it no longer felt bound by its prior sentencing promise. Defense counsel then moved to withdraw the guilty plea. County Court denied the motion and sentenced defendant to an indeterminate term of 1 to 3 years’ imprisonment. This appeal ensued.
On appeal, defendant contends that County Court erred in refusing either to give the sentence promised as part of the plea bargain or to permit defendant to withdraw his plea. We agree. Where, as here, there is nothing in the record to support an inference that the sentencing commitment was conditioned upon defendant’s appearance on the date scheduled for sentencing, the court could not impose a sentence greater than the one bargained for without first affording defendant the opportunity to withdraw his plea (see, People v Esposito, 32 NY2d 921, 923; compare, People v Green, 121 AD2d 858, 859, and People v Annunziata, 105 AD2d 709 [plea bargain enforced in absence of condition not to abscond], with People v McDaniels, 111 AD2d 876, 877, and People v Chevalier, 92 AD2d 944 [greater sentence permitted where plea bargain, expressly conditioned upon appearance at sentencing]). As for defendant’s remedy, we accept the People’s representation on appeal that it would be prejudicial to permit defendant to withdraw his plea at this time and proceed to trial on the now-stale indictment. Accordingly, we reverse and remit the matter for resentencing in conformity with the original promise made by the court (see, People v Annunziata, supra).
Judgment modified, on the law, by vacating the sentence; matter remitted to the County Court of Ulster County for resentencing in accordance with this court’s decision; and, as as modified, affirmed. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902803/ | Mercure, J.
Appeal from an order of the Family Court of Otsego County (Mogavero, Jr., J.), entered February 9, 1987, which granted petitioner’s application, in a *893proceeding pursuant to Family Court Act article 5, to adjudicate respondent as the father of a child born to Jennifer M.
A paternity proceeding was commenced on behalf of Jennifer M. (hereinafter the mother) for a determination that respondent was the father of a daughter born to her on March 4, 1986. At the filiation hearing, the mother testified that, to her best recollection, her last menstrual period prior to pregnancy was in May 1985; that she and respondent had sexual intercourse more than once during May and June 1985, ostensibly the time of conception, utilizing the birth control technique of withdrawal on those occasions; that she had sexual intercourse with respondent some 20 times between December 1984 and September 1985 and that she had no relations with other men during that period. Respondent testified that although he and the mother had sexual relations on three occasions, they did not engage in sexual intercourse during May or June 1985. The results of human leucocyte antigen (HLA) blood tissue tests and red blood cell tests were admitted into evidence and indicated the probability of respondent’s paternity to be 97.86%. Family Court adjudicated respondent to be the father of the child, and this appeal ensued.
We affirm. Respondent’s contention that the mother failed to establish his paternity by evidence that was clear and convincing, entirely satisfactory and sufficient to create a genuine belief that he was the child’s father, as is required in paternity cases (see, Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996), is not persuasive. A determination of paternity rests basically upon a resolution of the credibility of the parties (Matter of Seeberg v Davis, 84 AD2d 262, 263) and, since Family Court had the advantage of seeing and hearing the witnesses first hand, we are reluctant to disturb that court’s findings under the circumstances here present (see, Matter of Kimiecik v Daryl E., 92 AD2d 1063). Although the mother’s testimony was not crystal clear, the inconsistencies can be attributed to the fact that she was only 15 years old at the time she testified and that the acts of sexual intercourse occurred almost two years prior to the hearing (see, Matter of Karen K. v Christopher D., 86 AD2d 633). Additionally, the HLA tests, which were also relied upon by the court in its determination, are "highly accurate on the issue of paternity” (supra, at 634).
Order affirmed, without costs. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902804/ | Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered April 6, 2011, convicting defendant, after a jury trial, of rape in the first degree, criminal sexual act in the first degree, and two counts of sexual abuse in the first degree, and sentencing him to an aggregate term of 10 years, unanimously affirmed.
Defendant’s claim that the victim’s statement to a police officer shortly after the crime did not qualify under the prompt outcry exception to the hearsay rule is unpreserved, as well as being expressly waived, and we decline to review it in the interest of justice. As an alternate holding, we find that the statement was properly admitted (see People v McDaniel, 81 NY2d 10, 17-18 [1993]). Regardless of whether defendant preserved a challenge to the victim’s later statement to another officer, and regardless of whether it was error to permit two witnesses to give essentially the same evidence, any error was harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]).
Defendant was not deprived of a fair trial by the prosecutor’s summation. The prosecutor did not shift the burden of proof by commenting on defendant’s failure to call witnesses who were defendant’s friends, and who would have been in a position to corroborate defendant’s testimony (see e.g. People v Kowlessar, 82 AD3d 417 [1st Dept 2011]; People v Cochran, 29 AD3d 365, 366 [1st Dept 2006], lv denied 7 NY3d 787 [2006]).
We perceive no basis for reducing the sentence. Concur— Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2010872/ | 53 B.R. 450 (1985)
In re Dwight H. BECKER and Irene E. Becker, Debtors.
Dwight H. BECKER and Irene E. Becker, Plaintiffs,
v.
BANK OF BARRON, a Wisconsin banking corporation, Defendant.
Bankruptcy No. EF 11-84-00413, No. 84-C-942-S.
United States District Court, W.D. Wisconsin.
January 22, 1985.
*451 Peter F. Herrell, Jordan, Herrell & Thiel, Eau Claire, Wis., for plaintiffs.
Gregory A. Jennings, Chetek, Wis., for defendant.
MEMORANDUM AND ORDER
SHABAZ, District Judge.
This is an appeal of the decision of the Bankruptcy Court for the Western District of Wisconsin, 46 B.R. 17, Judge William Frawley presiding, in an adversary proceeding between the debtors in possession and a creditor. The question presented concerns the sufficiency of the financing statement filed by the creditor with respect to the description of loan collateral in which the creditor claims a security interest. In deciding for the debtors in possession, Judge Frawley held that the description was insufficient to perfect a security interest.
Jurisdiction is grounded in 28 U.S.C. § 1334.
FACTS
On September 5, 1974, the debtors, Dwight and Irene Becker, executed a consumer farm security agreement with the Bank of Barron, the agreement providing the bank with a security interest in:
all farm equipment now owned or hereafter acquired by debtor, and all accessions to, and spare and repair parts, special tools and equipment for farm equipment, all livestock now owned or hereafter acquired by debtor, and the young of all livestock. The following products of livestock now owned or hereafter acquired by debtor: milk and milk products. All accounts and contract rights now owned or hereafter acquired by debtor, arising from the sale, lease or other disposition of the following products: milk and milk products. All livestock feed now owned or hereafter acquired by debtor and all proceeds of any of the above-named and itemized property.
On September 11, 1974, the Bank filed a financing statement with the Barron County Register of Deeds which read, in pertinent part: "All farm personal property and feed now owned and hereafter acquired. 25% dairy assignment." The debtors concede that the financing statement perfects a security interest in feed, a 25% milk assignment and the proceeds of said items, but only an unperfected security interest in all other items specified in the security agreement.
Judge Frawley so held, and the Bank has appealed.
MEMORANDUM
The Court views this question, as did the court in Matter of H.L. Bennett Co., 588 F.2d 389 (3rd Cir.1978), cited by the debtor, as "a narrow one of statutory interpretation." Id. at 391. The Court is compelled to agree with Judge Frawley that the description *452 in the financing statement filed by the bank in this case is not sufficient to perfect a security interest in anything other than feed, a 25% milk assignment and the proceeds of the same.
Section 409.402(1)(a), Wis.Stats., provides that a financing statement is sufficient if it "contains a statement indicating the types, or describing the items, of collateral." Further, § 409.110 provides:
For the purposes of this chapter a description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.
Accordingly, the question here is whether "all farm personal property" reasonably identifies what is described or indicates a type or describes an item of collateral.
It is clear that the primary purpose of § 409.402 (corresponding to § 9-402 of the Uniform Commercial Code) is to provide notice to third parties of the possible claims of others. White and Summers, Uniform Commercial Code 2d, page 910 (1980). However, the statute requires some specificity (an indication of types or description of items) so that the filing of a financing statement itself, without explanation, cannot be sufficient despite the fact notice is given to third parties of a possible claim of another.
The Bennett case, cited above, concerned a financing statement which identified collateral as "all assets as contained in the security agreement." The Court of Appeals held this description to be insufficient under the theory that it neither described the items of collateral nor, more importantly, indicated a "type" of property within the meaning of Chapter Nine of the Uniform Commercial Code. Types of collateral, according to the Court, included those types of property defined in the Chapter, for example § 9-109 (at Wis.Stats. § 409.109).
The Court in Bennett placed significant reliance on another decision, In re Fuqua, 461 F.2d 1186 (10th Cir.1972), as do the debtors here. In Fuqua, the Court faced a financing statement which claimed, as collateral, "all personal property." This was held to be insufficient because the drafters, in requiring "any description" (see § 409.110), "must have intended that some description was required to elaborate on the naked phrase `all personal property.'" Id. at 1188.
While Wisconsin observes the comment to the UCC (regarding § 9-110) that exacting, serial number tests as to sufficiency are discouraged, Milwaukee Mack Sales v. First Wis. Nat'l Bank, 93 Wis. 2d 589, 287 N.W.2d 708, 713 (1980), it is clear that the description "all farm personal property" approaches the "super-generic" as discussed in Judge Frawley's decision. As a practical matter, this description provides little more notice to third parties than if no description at all were included. It does not "reasonably identify" anything claimed by the Bank because it provides no guidance to third parties about the nature of the Bank's claim. Even if livestock and farm equipment might be considered farm personal property, the breadth of the term destroys the intended purpose of the filing. This Court's decision in In re Central Wisconsin Ag Supply, Inc., 36 B.R. 908 (W.D. Wis.1983), is of no help to the Bank in this case. That case concerned whether a particular misnaming of the debtor was seriously misleading within the meaning of Wis.Stats. § 409.402(8). That is not the question here. While similarity in debtor names might be said to be enough to put third parties on notice that further checking is required, the general description provided in this case is not sufficient to constitute the same kind of notice.
Accordingly, the decision of the Bankruptcy Court must be affirmed.
ORDER
IT IS ORDERED that the decision of the Bankruptcy Court for the Western District of Wisconsin in the above entitled action is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902805/ | Harvey, J.
Appeal from a judgment of the Supreme Court (Mercure, J.), entered December 23, 1986 in Warren County, which granted petitioners’ application, in a proceeding pursuant to CPLR article 78, to annual a determination of respondent Lake George Zoning Board of Appeals approving a request by respondents Paul Aarons and Bonnie Aarons for a building permit.
Respondents Paul Aarons and Bonnie Aarons own a 1.26-acre parcel of land located on the shore of Lake George in Warren County. The parcel is intersected by a municipal boundary line. The result of this bisection of the property is that 0.72 acre is located in the Town of Queensbury and 0.54 acre is located in the Town of Lake George. The Queensbury portion of the parcel is improved with a single-family residence and a boathouse is located on the Lake George portion of the parcel. The Lake George portion of the land is situated in an area classified as a RS-1 (residential special) district. Thus, owners of parcels which conform to the minimum lot area of one acre may only construct one single-family residence on that parcel. In May 1986, the Aaronses applied to the Town of Lake George for a permit to build a single-family residence on the Lake George portion of their parcel.
The estate of Charles C. Freihofer, Jr., owns residential property abutting the western border of the Aaronses’ Lake George parcel and opposed the permit application. The zoning enforcement officer nevertheless granted the permit. Upon administrative review, respondent Lake George Zoning Board of Appeals (hereinafter the Board) agreed with the enforcement officer’s determination. The Board concluded that it should consider only land within the Town of Lake George in determining whether a lot was nonconforming under the Town of Lake George Zoning Ordinance § 8.40. At that time, the relevant portion of the ordinance provided as follows: "Nothing in this Ordinance shall prevent the use of any lot, or the erection of a building or other structure on any lot, which does not conform to the minimum area, shape or frontage requirements of this Ordinance, provided that all other requirements of this Ordinance have been met and that the owner of such lot does not own sufficient contiguous land to make a nonconforming lot, more nearly a conforming lot.”
In September 1986, petitioner Charles C. Freihofer, III (hereinafter petitioner), as executor of the estate, commenced *895the instant proceeding challenging the Board’s determination. Supreme Court concluded that section 8.40 of the ordinance had been unreasonably interpreted by the Board. The court stated that, in the absence of specific language precluding consideration of the Queensbury portion of the parcel, the Queensbury portion should be considered in determining whether to issue the permit. Petitioner’s application was thus granted and this appeal by the Aaronses ensued.
Initially, we note that petitioner has candidly brought to this court’s attention the fact that section 8.40 of that ordinance was amended, following entry of Supreme Court’s judgment, to explicitly and unambiguously provide that in determining whether a lot is nonconforming, only land within the Town of Lake George is to be considered. Since an appellate court generally applies the zoning ordinance as it exists at the time the appeal is decided (see, Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 64 NY2d 921, 922), the amendment would appear to mandate reversal of Supreme Court’s judgment. Petitioner contends, however, that is can establish "special facts” which would preclude reliance on the amended ordinance (see, Matter of Pokoik v Silsdorf 40 NY2d 769, 772-773). Even assuming, arguendo, that the special facts exception can be established and that the former ordinance must be considered, we reverse since we believe that the Board’s interpretation of the former ordinance was rational.
Zoning laws are in derogation of common-law property rights and thus must be strictly construed, avoiding extension by implication (see, Matter of 440 E. 102nd St. Corp. v Murdock, 285 NY 298, 304; see also, FGL & L Prop. Corp. v City of Rye, 66 NY2d 111, 115). While a municipality may take into account consideration of adjacent land outside its borders (see, 1 Anderson, New York Zoning Law & Practice § 5.17, at 193 [3d ed]), such consideration is not mandated on the facts at hand where the land situated in the neighboring Town of Queensbury is zoned similarly to property located in the Town of Lake George. Accordingly, we conclude that the Board’s interpretation of the former ordinance was not irrational (see, Appelbaum v Deutsch, 66 NY2d 975, 977; Matter of Frampton v Zoning Bd. of Appeals, 114 AD2d 670).
Judgment reversed, on the law, without costs, determination confirmed and petition dismissed. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823527/ | Luminaire. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902806/ | Appeal from order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 14, 2011, which denied the motion of defendant St. Vincent’s Catholic Medical Centers (St. Vincent’s) to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7) on the ground that plaintiffs claims were discharged due to bankruptcy, unanimously dismissed, without costs.
*443At issue in this appeal is the interpretation and implementation of a February 16, 2011 stipulation and order so-ordered by the United States Bankruptcy Court, Southern District of New York (Cecilia Morris, J.), which lifted the automatic stay on the underlying medical malpractice action pursuant to St. Vincent’s second bankruptcy proceeding and allowed the action to proceed, provided that plaintiff waived all claims against all debtors, including St. Vincent’s, all recovery is limited to the proceeds of St. Vincent’s third-party insurance coverage, and the insurers are responsible for all costs in defending the action. The order is silent, however, as to the first bankruptcy plan.
The bankruptcy court has jurisdiction to interpret and enforce its own prior orders (see In re Saint Vincents Catholic Med. Ctrs. of N.Y., 417 BR 688, 694 [SD NY 2009], citing Travelers Indemnity Co. v Bailey, 557 US 137, 151 [2009]). Moreover, in the instant matter, the bankruptcy court expressly provided that it “shall retain jurisdiction to resolve all matters relating to the implementation of this Stipulation and Order.” There are numerous factual and legal issues that need to be settled with respect to this stipulation and order before this Court may pass on the effect it may have had on plaintiffs action, specifically whether and how the second bankruptcy plan modified or replaced the first failed bankruptcy plan, what ultimate effect this may have had on plaintiffs underlying action, which St. Vincent’s argues is barred under the first plan due to plaintiffs failure to timely file a proof of claim under that plan, and whether the first plan could have properly effectuated a non-debtor release for the insurers, thus barring plaintiff, as a non-approved claimant, from the recovery contemplated in the order. Hence, we dismiss this appeal to allow the Bankruptcy Court to expound upon this and other issues necessary to resolve the issue of whether plaintiff can maintain this action, even solely against the insurers, with St. Vincent’s as a nominal defendant. Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. [Prior Case History: 2011 NY Slip Op 31590(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902807/ | Levine, J.
Appeal from a decision of the Workers’ Compensation Board, filed March 16, 1987.
Claimant sustained injuries in two work-related accidents which occurred in 1975 and 1977. Following each accident, claimant received medical treatment and returned to work. Both cases had been closed but were reopened and restored to the calendar for development of the record concerning compensable lost time, treatment and permanency. The Workers’ Compensation Board determined, inter alia, that claimant had a permanent partial disability, apportioning 25% to the 1975 accident and 75% to the 1977 accident. Claimant’s untimely appeal from this decision was dismissed by this court.
On November 20, 1985, the Board made certain findings with respect to the workers’ compensation carriers’ responsibility for medical bills and claimant’s average weekly wage. That decision was affirmed by this court, which noted that the contention that claimant is and has been permanently and totally disabled as a result of each of the work-related accidents was outside the scope of that appeal (Matter of Baltsavias v Caldor, Inc., 127 AD2d 895, appeal dismissed 70 NY2d 796).
In the decision which is the subject of this appeal, the Board determined that claimant may not be awarded compensation in excess of the statutory maximum rates, that there has been no change in the degree of causally related disability since the prior classification, and that claimant is entitled to compensation at the rate previously determined and as previously apportioned ($74.06 per week apportioned at 25% and 75%).
The gravamen of claimant’s argument in this appeal is that the Board’s order of restoral dated September 4, 1979 constituted a final order of the Board and that all subsequent decisions rendered by the Board were made in excess of the Board’s jurisdiction and are therefore a nullity. Claimant further contends that the Board has acted tortiously, negligently and in breach of its contract to provide compensation to claimant, entitling claimant to recover over $10,000,000 from the Board in compensatory and punitive damages. This court, of course, lacks jurisdiction to entertain the claims against the State and claimant’s other contentions are totally without merit.
Although claimant does not contest the evidentiary basis for the Board’s decision from which he appeals, in our view, the decision was correct in every respect and should be affirmed. *897The Board’s determination that claimant was not entitled to receive compensation in excess of the statutory maximum rates was clearly proper (see, Workers’ Compensation Law § 15 [6] [b]; see also, Matter of Linger v Anchor Motor Frgt., 124 AD2d 350, lv denied 69 NY2d 605). In addition, substantial evidence supports the Board’s conclusions that claimant suffers from only permanent partial disability and that there has been no change in the degree of causally related disability since the prior classification.
Decision affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902809/ | Mahoney, P. J.
Appeal from a decision of the Workers’ Compensation Board, filed August 25, 1986, which, inter alia, ruled that an employer-employee relationship existed and that the insurance carrier had not properly canceled its workers’ compensation policy.
On the night of January 12, 1983, claimant was working in the garage of his alleged employer, Elmer Holder, in the City of Watertown, Jefferson County. In response to a call, claimant and another were dispatched in Holder’s truck to aid a stalled vehicle on Interstate Route 81. Claimant was injured when a truck ran into the back of the vehicle claimant was attempting to assist.
After claimant filed a claim for workers’ compensation benefits in March 1983, New Hampshire Insurance Company, Holder’s alleged workers’ compensation carrier, controverted coverage, claiming that it had canceled Holder’s policy for *900nonpayment of premium on October 22, 1982. At hearings conducted for almost a year, Holder denied that claimant was his employee and New Hampshire contended that it had canceled Holder’s policy prior to the accident. The Workers’ Compensation Law Judge found, inter alia, that an employer-employee relationship existed between Holder and claimant, and that New Hampshire’s insurance coverage had not been properly canceled. New Hampshire was held liable on the claim. The Workers’ Compensation Board affirmed the findings and this appeal by New Hampshire ensued.
The existence of an employer-employee relationship is a question of fact (Matter of Richter v Buffalo Air Park, 125 AD2d 809). A finding of such a relationship by the Board will be affirmed if supported by substantial evidence, even if evidence to support a contrary finding is also substantial (Matter of Le Myre v La Belle, 127 AD2d 955). Two tests are used to determine whether an employer-employee relationship exists; the control test and the relative nature of the work test (Commissioners of State Ins. Fund v Lindenhurst Green & White Corp., 101 AD2d 730).
Here, substantial evidence supports the finding of an employer-employee relationship. As to the control test, the equipment used at the time of the accident, a tow truck, was Holder’s. Holder had provided claimant, as well as others, shirts with their names and Holder’s business name, "Buster’s Wrecking”, on them. Claimant’s wife testified that Holder had agreed to pay claimant a set wage for working 6 days a week, 8 to 10 hours a day, and that part of claimant’s wages were paid by giving claimant goods or paying claimant’s truck registration fee. Such exchanges will be considered wages as long as they are received with the understanding that they are equivalent to wages (see, 1C Larsen, Workmen’s Compensation § 47.43 [a]). While Holder stated that these exchanges were loans, the Board was free to credit the testimony of claimant’s wife.
As to the relative nature of the work test, it is clear that towing or assisting disabled vehicles was an important part of Holder’s work and was inseparable from it. Finally, we conclude that claimant’s work, driving a wrecking truck for Holder, could not be considered the type of work for which a person would carry his own insurance.
Next, we reject New Hampshire’s contention that, since no taxes were withheld from claimant’s wages and the wages paid might have been below minimum wage, the employment *901was illegal and recovery is prohibited. While a contract for the performance of an illegal act will prohibit recovery, such a result does not follow where the illegality does not inhere in the work. Here, while the employment may have violated the tax laws and other statutes, there was nothing illegal about the work itself (see, 1C Larsen, Workmen’s Compensation § 47.51).
Finally, New Hampshire failed to effectively cancel Holder’s insurance coverage. Workers’ Compensation Law § 54 (5) states that, in canceling a worker’s compensation policy for nonpayment of premium, "[s]uch notice shall be served on the employer by delivering it to him or by sending it by mail, by certified or registered letter”. Here, creditable evidence disproves any personal service of a notice of cancellation on the employer and all parties concede that no notice by certified or registered mail was sent by New Hampshire to the employer as required by Workers’ Compensation Law § 54 (5).
New Hampshire’s argument that, since this case involves a premium financing contract, cancellation had only to meet the requirements of Banking Law § 576 is without merit. We have considered this argument before and held that in such a situation Workers’ Compensation Law § 54 (5) must be followed (see, Matter of Bogliolo v Advocate, Inc., 31 AD2d 855).
Decision affirmed, with one bill of costs to respondents filing briefs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902811/ | Kane and Levine, JJ.,
dissent and vote to modify in a memorandum by Levine, J. Levine, J. (dissenting). In our view, Supreme Court erred in granting plaintiffs summary judgment. The mortgage contingency clause stated in pertinent part: "[t]his contingency shall be deemed waived unless purchaser shall notify contractor by registered mail, return receipt requested, no later than 45 days of his inability to obtain said [mortgage] approval” (emphasis supplied). The conclusion seems unescapable to us that the 45-day time limit in that clause has to be referable to a period commencing with the execution of the contract. Otherwise, the time limit would be free-floating and essentially meaningless. Therefore, by the literal terms of the clause, plaintiffs were "deemed [to have] waived” the mortgage contingency, which would otherwise have discharged their obligation to perform the agreement, well before the February 9, 1984 modifications adding extras and extending the time to complete construction and close title.
The majority apparently agrees that the mortgage contingency clause was completely unaffected by the February 9, 1984 addenda, since the modifications neither expressly nor impliedly impinged upon that clause. This conclusion conforms to settled law. As stated in Beacon Term. Corp. v Chemprene, Inc. (75 AD2d 350, 354, lv denied 51 NY2d 706), "[t]he modification of a contract results in the establishment of a new agreement between the parties which pro tanto supplants the affected provisions of the original agreement while leaving the balance of it intact” (emphasis supplied). Nevertheless, the majority holds that the 45-day period "began running anew on February 9, 1984 when the contract was *904modified”. Thus, the majority concludes that, somehow, the parties in entering into the February 9, 1984 modification, agreed to "unwaive” the waiver they stipulated would take place after the first 45 days in the mortgage contingency clause. Simple logic dictates that plaintiffs’ waiver of the right to rescind, exercisable only within the first 45 days after execution of the contract, as provided by the express terms of the mortgage contingency clause, cannot be both intact and yet "unwaived” as a result of the February 9, 1984 changes in the agreement. Not only logic, but fairness and policy dictate a contrary result to that reached by the majority. Plaintiffs knew on December 13, 1983, prior to the expiration of the 45-day period, that the mortgage commitment they had obtained was unsatisfactory since its expiration date was well before the closing date under the contract. At that point, they had two options, to promptly cancel the contract by invoking the mortgage contingency clause or to seek an extension of the contingency period. They did neither.
Time restrictions in mortgage contingency clauses of real estate contracts are common and important. Through such demarcations, the seller’s risk of the loss of a sale because of the buyer’s inability to obtain financing is placed within defined and predictive limits. They represent a reasonable, bargained-for accommodation of the competing interests of buyers and sellers concerning financing risks. Under the majority’s decision, a time limit for rescission under a mortgage contingency clause becomes ineffective upon any modification of the agreement, even when, as here, there is no indication whatsoever of the parties’ mutual assent to renewal or extension of the contingency period.
On the basis of the foregoing, we would not only reverse, but also grant summary judgment in favor of defendants except for the existence of a question of fact as to whether plaintiffs may be entitled to equitable rescission. Plaintiffs aver that they notified defendants in late December 1983 of the problem with their original mortgage commitment and their continued need for financing, and that they believed the February 9, 1984 modifications had the effect of renewing the 45-day period. This would support the inference that defendants were aware of plaintiffs’ mistaken belief regarding the effect of the February 9, 1984 modifications as a renewal of the mortgage clause, but unfairly refrained to correct that mistaken belief, entitling plaintiffs to relief on the basis of unilateral mistake (see, Sheridan Drive-In v State of New York, 16 AD2d 400, 405; see generally, Restatement [Second] of *905Contracts §§ 153, 201, 376 [1979]). Since defendants controvert plaintiffs’ averments as to such notice and awareness, a triable issue exists precluding summary judgment. Accordingly, we would modify Supreme Court’s order by reversing so much thereof as granted plaintiffs’ motion for summary judgment. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902814/ | Weiss, J.
Cross appeals from an amended decision of the Workers’ Compensation Board, filed May 14, 1986.
When this claim was previously before the court, we determined that the employer’s workers’ compensation carrier was not entitled to offset future compensation benefits against the net proceeds of claimant’s third-party personal injury action settlement (82 AD2d 711). The Court of Appeals affirmed this ruling (56 NY2d 877). On this appeal, two further issues have developed, (1) whether the carrier was properly held liable for a penalty due to the late payment of compensation pursuant to Workers’ Compensation Law § 25 (1) (e), and (2) whether the carrier was required to furnish special apparatus for claimant’s motor home, used solely for recreational purposes, pursuant to Workers’ Compensation Law § 13.
The Workers’ Compensation Board imposed a penalty of 10% of the unpaid award running from October 27, 1978, the date of the settlement, through October 29, 1983 pursuant to Workers’ Compensation Law § 25 (1) (e). This provision provides that where a claim for compensation is not controverted, a carrier is liable for a 10% penalty if it "fail[s] to pay any instalments of compensation within eighteen days after the same become[s] due”. This appeal raises the novel question as to when the compensation became due in the aftermath of our previous rejection of the carrier’s offset rights. As in Matter of Surdi v Premium Coal & Oil Co. (52 NY2d 860, 862), the construction of this statutory provision requires us to assess the legislative intent, without deference to administrative expertise. Accordingly, a further recitation of the underlying procedural history is in order.
By notice of decision filed July 5, 1979, incorporating a memorandum dated June 6, 1979, the Workers’ Compensation Law Judge (hereinafter WCLJ) awarded compensation from the date of the accident through February 13, 1979 at $80 per week, with a direction to the carrier to continue payments, and authorized the carrier’s offset rights. On July 26, 1979, a supplemental decision was rendered ordering the carrier to *906"resume” payments on March 22, 2023 on the basis of an actuarial computation of the carrier’s offset rights. Upon our reversal of the Board’s determination affirming the WCLJ’s award, the matter was remitted to the Board for an appropriate followup (82 AD2d 711, 713, supra). Following the Court of Appeals affirmance, the full Board issued a resolution, dated July 27, 1982, adopting the appellate court rulings and referring the case to a Board panel "for further proceedings consistent with the decision of the Court of Appeals”. By decision issued June 22, 1983, the Board modified the WCLJ’s July 5, 1979 decision by deleting the carrier’s offset rights and "restored [the case] to the Trial Calendar for appropriate awards”. Thereafter, by decision dated December 8, 1983, the WCLJ issued an award of compensation from February 13, 1979 through November 16, 1983 and awarded late payment penalties of 10% to 20% on various award periods (see, Workers’ Compensation Law § 25 [1] [e]; [3] [former (c)]).
The carrier essentially maintains that by virtue of the controversy over the offset issue, the obligation to resume payments did not arise until December 8, 1983 when the notice of decision establishing an award was filed. Focusing on the deferral language employed in the various decisions leading up to that award, the carrier maintains that the offset controversy was not actually resolved until the December 8, 1983 award was rendered. Since payment was made within the relevant 10-day time limit set forth in Workers’ Compensation Law § 25 (3) (former [c]), the penalty provision was not triggered.
In our view, the Board properly applied the procedure set forth in Workers’ Compensation Law § 25 (1) for noncontroverted claims in assessing a 10% penalty. The Board determined that by virtue of the full Board’s resolution on July 27, 1982 adopting the appellate resolution of the offset issue, the case was no longer controverted and the carrier was obligated to resume compensation payments. Our review of the WCLJ’s July 5, 1979 decision, as amended, confirms that the carrier was required to continue payments subject only to the offset. Upon deletion of the offset, the obligation to continue payments stood unimpeded. Thus, the Board could rationally focus upon the July 27, 1982 resolution as the due date for the continuation of compensation benefits within the meaning of Workers’ Compensation Law § 25 (1) (e) (see, Workers’ Compensation Law § 54-b). This construction is consistent with the public policy favoring prompt payment to injured employees which underlies the penalty provisions of Workers’ Compensa*907tion Law § 25 (see, Matter of Surdi v Premium Coal & Oil Co., 71 AD2d 964, 965 [Mahoney, P. J., dissenting], revd on dissenting opn below 52 NY2d 860). Since the carrier unquestionably failed to make payment within the 18-day limit, the 10% penalty was properly assessed (see, Workers’ Compensation Law §25 [1] [e]). Given the circumstances of this case, we further agree with the Board’s assessment that the 20% penalty provided in Workers’ Compensation Law § 25 (3) (former [c]) does not pertain. The actual terms of the July 5, 1979 award, other than the offset provision, were not altered until the WCLJ filed his decision on December 8, 1983 and payment was apparently made within the 10-day limit (cf., Matter of White v New York City Hous. Auth., 83 AD2d 707).
Finally, we agree with the Board that claimant was not entitled to reimbursement for the expense of outfitting his recreational vehicle (see, Workers’ Compensation Law § 13; Matter of Kranis v Trunz, Inc., 91 AD2d 765).
Decision affirmed, with costs to the Workers’ Compensation Board against the employer and its workers’ compensation carrier. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902815/ | Casey, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County), to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
On November 24, 1986 petitioner, an inmate at Clinton Correctional Facility, was charged in an inmate misbehavior report filed by Correction Officer Michael Early with insolent behavior and refusal of a direct order. It appears that Early was stationed outside a yard door through which inmate traffic passed and Correction Officer David Jenkins was inside the door. According to Early’s report, petitioner attempted to pass through the door without permission and disobeyed his initial order to stop. When petitioner finally stopped, he argued with Early about access to the law library and then about producing his identification card.
At the Tier II disciplinary hearing conducted by Lt. Robert De Fayette, petitioner was read Early’s report. Petitioner decided not to call Early as a witness. Instead he called Jenkins, who stated that he went out the door to speak with *908Early and witnessed petitioner arguing with Early and refusing to obey Early’s order. Petitioner himself admits that he paused to question the order not to enter the corridor. Based on this testimony, petitioner was found guilty and was sentenced to 30 days’ confinement with loss of privileges. This determination was upheld on administrative appeal. Supreme Court transferred this CPLR article 78 proceeding to this court on the basis of the existence of a substantial evidence question.
We affirm upon a finding that substantial evidence clearly supports the determination (see, Matter of Perez v Wilmot, 67 NY2d 615, 617; People ex rel. Vega v Smith, 66 NY2d 130, 139-143). Accordingly, the determination should be confirmed and the petition dismissed.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902820/ | Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 15, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fourth degree, criminally using drug paraphernalia in the second degree and reckless endangerment in the second degree, and sentencing him to an aggregate term of 1 to 3 years, unanimously affirmed.
The court properly denied defendant’s suppression motion. The police observed defendant’s car traveling more than 80 miles per hour and cutting off other cars. Accordingly, the police had probable cause to arrest defendant for, at least, second-degree reckless endangerment (see People v Gittens, 110 AD2d *445908 [2d Dept 1985]), which is a crime and not a traffic infraction. It was also reasonable under the circumstances for the police to impound the car and conduct an inventory search (see People v Walker, 20 NY3d 122 [2012]). This search was conducted pursuant to standardized guidelines that were introduced into evidence, and that were designed to safeguard defendant’s property, protect the police against claims of theft, and guard against dangerous instrumentalities (see People v Galak, 80 NY2d 715, 718-719 [1993]). Those guidelines require the police to check any area that may contain valuables. The officer testified that valuables might be stored in the spare tire compartment in the trunk of a car; accordingly, he did not exceed the permissible scope of the search in checking that compartment and seizing and vouchering the cocaine and other items found there. Furthermore, the property clerk’s invoices, even if not ideal, sufficed as a meaningful inventory list (see Walker, 20 NY3d 122).
Defendant’s challenges to sufficiency of the evidence and his related claims regarding the chemical analysis of the drugs are unpreserved and we decline to review in the interest of justice. As an alternative holding, we find these arguments to be without merit. We also find that 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. Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902821/ | Weiss, J.
Appeal from an order of the Surrogate’s Court of Montgomery County (Catena, S.), entered April 9, 1987, which, inter alia, denied respondent’s motion to conduct separate oral depositions of petitioners.
In this probate proceeding, petitioners have filed a claim against decedent’s estate in the amount of $20,585 for personal services they allegedly rendered on behalf of decedent from April 1985 through July 25, 1986. Petitioners maintain that these services were performed in consideration of decedent’s promise to compensate them in his will. The bulk of the estate was actually bequeathed to decedent’s sister and no provision was made for petitioners. The sole issue on this *916appeal is whether Surrogate’s Court properly denied respondent’s motion to compel separate oral examinations of the two petitioners. Surrogate’s Court reasoned that since the examination rules at trial pertain, it would be improper to exclude a party from an examination before trial (see, CPLR 3113 [c]; see also, Shepherd v Swatling, 36 Misc 2d 881).
We reach a different conclusion, for under appropriate circumstances, a court may exclude a party from a pretrial deposition (see, Swiers v P & C Food Mkts., 95 AD2d 881; Schwartz v Marien, 65 Misc 2d 811, 813, affd 36 AD2d 1027; cf., Shepherd v Swatling, supra). Here, petitioners’ interests are virtually identical and each is represented by the same attorney. With these circumstances prevailing, to allow each petitioner to testify in the presence of the other would clearly work an unfair advantage in their favor. While trial courts are vested with broad discretion in supervising disclosure, in the interest of preserving respondent’s right to the spontaneous, uncolored testimony of each petitioner, we find that separate depositions are in order (see, Swiers v P & C Food Mkts., supra; Schwartz v Marien, supra). Therefore, the order should be modified accordingly.
Order modified, on the facts, with costs to respondent, by reversing so much thereof as denied respondent’s motion for separate oral depositions of petitioners; grant motion to that extent; and, as so modified, affirmed. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902822/ | Levine, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Warren County) to review a determination of respondent which denied petitioners’ application for permission to construct additional docks on Lake George.
In 1972 petitioners acquired approximately 137 acres of land in the Town of Bolton, Warren County. Of the 137 acres, approximately 32.5 acres were located between Lake George and the eastern side of State Route 9N (hereinafter the eastern parcel). The remaining acres were located on the western side of Route 9N (hereinafter the western parcel).
In 1976 petitioners obtained a permit from respondent authorizing a seven-lot residential subdivision on the eastern parcel. Respondent issued a second permit to petitioners in 1982 authorizing the subdivision and development of an additional 13 lots on the eastern parcel. As noted in the 1982 *917permit, petitioners had designated a 1.53-acre parcel, spanning the eastern parcel’s 570-foot shoreline, as a "community beach and picnic area”. The permit authorized the construction of "temporary stake docks” but did not specify where the docks were to be located. In order to construct the temporary docks, petitioners needed the further approval of the Department of Environmental Conservation (hereinafter DEC) (see, 6 NYCRR 646.2 [a]). In August 1983, DEC issued petitioners a permit authorizing the construction of three temporary docks, to be anchored parallel to a preexisting dock.
In July 1985 petitioners submitted an application to DEC seeking permission to redesign and relocate the three docks authorized under the 1983 permit. In August 1985, DEC issued a notice of complete application concerning petitioners’ proposed dock modifications. This notice, however, was subsequently withdrawn by DEC and petitioners were advised that they would have to first obtain respondent’s approval. Petitioners made an application to respondent, and a public hearing was held on the matter. Following the hearing, respondent denied petitioners’ application to relocate the docks. Respondent concluded, inter alia, that it could not make the necessary findings that (1) the project would be compatible with the preservation of adjacent wetlands (9 NYCRR 578.10 [a] [1] [i]), and (2) that it "would not result in degradation or loss of any part of the wetland or its associated values” (9 NYCRR 578.10 [a] [1] [ii]). Petitioners then commenced the instant proceeding pursuant to CPLR article 78 seeking review of respondent’s determination.
At the outset we note that petitioners no longer contest that the Freshwater Wetlands Act (ECL art 24) provides a statutory basis for respondent’s jurisdiction over their dock modification proposal. Under this proposal, the docks would be relocated to a place directly in front of a berm area which borders a large wetland complex. The berm is a raised stretch of dry land, held together by roots and vegetation, which serves to separate the wetland complex from the shoreline of the lake. Since only a narrow strip of sandy beach lies between the berm and the shoreline, respondent was concerned that placing the docks in front of the berm would encourage boaters to walk on the berm and/or along its base, both of which would result in destruction of the berm. There was evidence indicating that damage to the berm would expose the wetlands to serious erosional forces.
ECL 24-0701 (2) lists a variety of activities, including "erecting any structures * * * the driving of pilings, or placing of *918any other obstructions”, which, if conducted on freshwater wetlands, are subject to regulation under the Freshwater Wetlands Act. The statute further states that: "These activities are subject to regulation whether or not they occur upon the wetland itself, if they impinge upon or otherwise substantially affect the wetlands and are located not more than one hundred feet from the boundary of such wetland. Provided, that a greater distance from any such wetland may be regulated pursuant to this article by [the agency which] has jurisdiction over such wetland, where necessary to protect and preserve the wetland” (ECL 24-0701 [2]). Activities which are located within the boundaries of the Adirondack Park, and which would otherwise be subject to regulation under ECL 24-0701 (2), are within respondent’s jurisdiction (see, ECL 24-0801; see also, Green Is. Assocs. v Adirondack Park Agency, 131 Misc 2d 1021, 1025). Since in our view, respondent properly had jurisdiction under the Freshwater Wetlands Act, we need not address respondent’s other bases of jurisdiction.
Petitioners also contend that respondent’s determination denying their proposal to relocate the docks is irrational and unsupported by substantial evidence. We do not agree with petitioners’ contention that there were inconsistencies between the testimony of respondent’s two expert witnesses. On the contrary, both witnesses agreed that substantial harm would befall the berm and, in turn, the wetlands if the docks were placed directly in front of the berm area. In addition, respondent was not required to find that the construction of a walkway and/or planting shrubbery on the berm would necessarily eliminate the potential for harm. In our view, there was ample evidence to support respondent’s conclusion that the proposal would not be compatible with the preservation of the entire wetland (see, 9 NYCRR 578.10 [a] [1] [i]).
We have considered petitioners’ other contentions and find them also to be without merit.
Determination confirmed, and petition dismissed, without costs. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2076373/ | 34 Ill. App. 3d 382 (1975)
340 N.E.2d 141
AMELIA M. EDEN, Plaintiff-Appellant,
v.
JAMES F. EDEN, Defendant-Appellee.
No. 61136.
Illinois Appellate Court First District (4th Division).
November 26, 1975.
*383 H. Joseph Gitlin, of Woodstock, for appellant.
Wayne J. Silva, of Hoffman Estates, for appellee.
Reversed and remanded.
Mr. JUSTICE BURMAN delivered the opinion of the court:
The plaintiff, Amelia M. Eden, commenced an action for divorce against the defendant, James F. Eden. The defendant filed an answer to the plaintiff's complaint as well as a counterclaim to which the plaintiff replied. After issuing a series of pretrial orders pertaining to matters such as temporary child support and alimony for the plaintiff, psychiatric examinations for both parties, and a writ of attachment for contempt against the plaintiff for infringement of defendant's visitation rights, the trial court, in an ex parte proceeding, dismissed the plaintiff's complaint for want of equity and entered a decree of divorce upon the defendant's counterclaim. Subsequent to an unsuccessful attempt to set aside the divorce decree, the plaintiff was found guilty of wilful contempt of court *384 and sentenced to be incarcerated for sixty days. On appeal, the plaintiff contends the trial court erred in (1) denying plaintiff's motion to set aside the decree of divorce and (2) finding the plaintiff in contempt of court and imposing a jail sentence for such violation. We are in accord.
A review of the record reveals that the plaintiff, a resident of McHenry County, filed a sworn complaint on December 26, 1973, for divorce against the defendant, a resident of Cook County. On January 14, 1974, the defendant filed his answer to the complaint as well as a counterclaim for divorce. The plaintiff replied to the allegations contained in the defendant's answer and counterclaim. An order was subsequently entered on February 7, 1974, wherein not only was a hearing set concerning the plaintiff's request for temporary alimony, child support and custody but the court further restrained each party from harassing one another and from encumbering or disposing of the marital assets. On April 17, 1974, the plaintiff was granted leave for substitution of counsel. The court also ordered the defendant to pay the plaintiff the sum of $700 per month for temporary child support. The defendant, in turn, was granted visitation rights with the parties' three children on each Saturday and Sunday from 10 a.m. to 6 p.m. provided he gave the plaintiff two days' notice. A petition for a rule to show cause was filed by the defendant on April 29, 1974, in which disobedience by the plaintiff of the court's order as to harassing and temporary visitation was alleged. This petition was succeeded by an order entered on April 30, 1974, wherein the plaintiff was required to appear before the court to show cause on May 7, 1974. On that same date, the instant divorce action was to be heard on the regular contested call of cases for trial, but was dismissed for want of prosecution. The dismissal order was vacated on May 6, 1974, by virtue of the defendant's petition and the cause was set for trial on June 24, 1974.
On May 7, 1974, the date set for the return of the rule to show cause and for pretrial, the defendant filed a petition for (1) a mental examination of the plaintiff, (2) a declaratory judgment that the plaintiff was incompetent, (3) temporary custody of the children, and (4) exclusive temporary possession of the parties' marital home. The court also entered an order on that date allowing the withdrawal of the plaintiff's second attorney as well as requiring both parties to submit to a psychiatric examination to ascertain their mental condition. All other matters were continued generally.
When the cause appeared on the contested trial calendar on June 24, 1974, the court continued the matter to July 18, 1974, since only the defendant and his attorney appeared. On July 9, 1974, the defendant submitted a motion for and the court ordered a writ of attachment against the plaintiff because she refused him visitation to the children. The *385 cause subsequently appeared on the call of the contested trial calendar on July 19, 1974, at which time the plaintiff did not have an attorney of record. Despite the presence of only the defendant and his attorney, the court, in an ex parte proceeding, dismissed the plaintiff's complaint for divorce for want of equity and entered a decree of divorce on the defendant's counterclaim. Such decree barred the plaintiff from receiving alimony; granted the defendant all the furniture and furnishings of the marital residence, title and possession to the marital residence, custody of the three minor children of the parties without any visitation provision by the plaintiff, and other relief pertaining to the parties' respective personal possessions. The decree also continued the writ of attachment which was subsequently served on the plaintiff, but was quashed by a court order entered on July 23, 1974, which also released the plaintiff from sheriff's custody.
On August 19, 1974, the plaintiff, by her new attorney of record, filed a motion supported by an affidavit to set aside the decree for divorce. By an agreed order, this motion was continued to September 19, 1974. However, on September 10, 1974, the defendant filed a petition for a rule to show cause, and a writ of assistance as well as a motion to dismiss the plaintiff's motion to set aside the divorce decree. The defendant submitted on September 25, 1974, a second petition for the same relief to which the plaintiff filed an answer. With both parties and respective counsel present on that date, the court entered an order finding the plaintiff guilty of wilful contempt of court for refusing to allow the defendant to visit his children and committing her to jail for sixty days. This edict further provided that the order of commitment be suspended until further order of the court.
Another petition was filed by the defendant on October 22, 1974, in which he sought the immediate commitment of the plaintiff and that her motion to vacate the decree for divorce be dismissed with prejudice. The plaintiff moved to dismiss this petition. In response to these pleadings, the court found that due to the plaintiff's unaltered contemptuous misconduct in refusing visitation to the defendant, her motion to set aside the divorce decree was denied and she was committed to jail for sixty days, such commitment to be stayed for seven days contingent that she voluntarily commit herself to a psychiatric institution. An appeal from the above order was taken by the plaintiff on October 30, 1974. An order committing the plaintiff to jail for sixty days was entered the next day and she was taken into custody on November 12, 1974. The plaintiff remained in jail until November 27, 1974, when this court, on the plaintiff's motion, released her pending disposition of this cause on appeal.
1 We first consider the propriety of the denial by the trial court of *386 the plaintiff's motion to set aside the decree of divorce. In the case at bar, plaintiff's motion was made pursuant to section 50(5) of the Civil Practice Act and section 1.5 of the rules of practice of the circuit court of Cook County which respectively provide:
"The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable." (Ill. Rev. Stat. 1973, ch. 110, par. 50(5).)
"A motion to set aside a judgment or decree entered upon default should show a meritorious defense to the claim and that he and his attorney have exercised reasonable diligence * * *." (Cook County Cir. Ct. R. 1.5.)
The defendant contends that since a default order was never entered in this matter, the plaintiff's motion should have been filed pursuant to section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68.3) which allows a party within 30 days after the entry of a decree in all cases tried without a jury to file a motion to vacate a decree. Yet, it is well settled in Illinois that matters of this nature cannot be raised for the first time on appeal. (See, e.g., Rosewood Corp. v. Fisher, 46 Ill. 2d 249, 256, 263 N.E.2d 833, 837, cert. denied sub. nom., Burton v. American National Bank & Trust Co., 401 U.S. 928, 28 L. Ed. 2d 209, 91 S. Ct. 924; Anderson v. Anderson, 30 Ill. App. 2d 345, 174 N.E.2d 716 (abstract opinion)). Even assuming arguendo that the plaintiff should have brought her motion under section 68.3 of the Civil Practice Act, the substantive relief sought by the motion was the same and identification of the section of the statute could be considered mere surplusage since the character of a pleading is determined more from its content than by its label. (Allstate Insurance Co. v. Horn, 24 Ill. App. 3d 583, 591, n. 2, 321 N.E.2d 281, 291, n. 2; Kasper v. Frank, 9 Ill. App. 3d 481, 483, 292 N.E.2d 508, 509.) Thus, whether the decree was technically entered by default or heard ex parte as uncontested, was, for all practical purposes, the same since only one party was heard by the court.
While default judgments are often entered to foster control and discipline of court procedure (Smith v. National Drag Racing Enterprises, Inc., 24 Ill. App. 3d 91, 320 N.E.2d 43 (abstract opinion)), a court has the power to vacate a default divorce decree in any case where the circumstances demonstrate that justice will be served. (Younkins v. Younkins, 121 Ill. App. 2d 416, 421, 257 N.E.2d 521, 523.) Although there is no hard and fast rule, which could be applied to all situations regardless of the outcome, to determine what is just and proper (Morning v. Morning, 9 Ill. App. 3d 555, 599-60, 291 N.E.2d 875, 879; Widicus v. Southwestern *387 Electric Cooperative, Inc., 26 Ill. App. 2d 102, 109, 167 N.E.2d 799, 803), the existence of a party's meritorious defense or his excusable neglect are factors, as is the hardships suffered by the other party in going to trial on the merits, which the court may consider in resolving whether to vacate the default. E.g., Becker v. Pescaglia, 24 Ill. App. 3d 410, 411, 320 N.E.2d 615, 617; Keafer v. McClelland, 23 Ill. App. 3d 1035, 1037, 321 N.E.2d 136, 137-38.
2 Applying the above legal precepts to the instant case, we are of the opinion that the trial court erred in denying plaintiff's motion to vacate the decree of divorce. The plaintiff did exercise due diligence in attempting to set aside the decree as evidenced by the filing of her motion to vacate within the 30 days after its entry. Moreover, the plaintiff did proffer meritorious defenses in her motion accompanied by her affidavit, which ranged from her denial that she had no equity in the real estate of the parties to an action on the allegations contained in the defendant's counterclaim pertaining to her fitness to have custody of the parties' children. It is also clear from the record that the trial court did not take nor hear any evidence on the motion to vacate. Rather, as the defendant concedes, and the following passage illustrates, the trial court predicated its October 22, 1974, order to deny such motion solely on the prior contemptuous conduct of the plaintiff.
"Based upon this court's previous finding that Amelia Eden was and is in wilful contempt of this court's order by her refusal to allow James Eden to visit the parties' children in such order, and based upon this court's discretion that since September 25, 1974, said Amelia Eden has not altered her pattern of contempt and misconduct with respect to refusal to permit James Eden to visit his children, it is ordered that: (1) Amelia Eden's request for affirmative relief from this court in the nature of her motion to set aside the Decree of Divorce is hereby denied * * *."
We therefore conclude that in light of the judicially enunciated factors utilized in determining whether to vacate a decree entered ex parte, substantial justice necessitates the reversal of the trial court's denial of the plaintiff's motion. We further believe that the decree rendered by the trial court works an injustice on the plaintiff and should be vacated. As mentioned previously, the plaintiff had no counsel of record when the cause was called for trial on the contested trial calendar. A quick look in the court file would reveal the many appearances in court of the parties and the entry of numerous orders indicating a serious contested matter. In addition, the decree was entered only one day after such hearing. We agree with the plaintiff that the previsions contained in the decree were totally one-sided and unconscionable in that it awarded *388 the defendant virtually all of the parties' real and personal property besides granting him custody of the children who were then residing with plaintiff. Hence, it is the belief of this court that vacating both the trial court's order denying the plaintiff's motion to set aside the divorce decree itself will allow the plaintiff to have her day in court and that a trial on the merits will not result in any prejudice to the defendant.
3 We also believe that the trial court erred in finding the plaintiff in contempt of court. Contempt of court generally consists of any act which is calculated to obstruct, embarrass or hinder the court in the administration of justice and which is committed for the purpose of lessening the authority or the dignity of the court. (E.g., People v. Miller, 51 Ill. 2d 76, 78, 281 N.E.2d 292, 293; In re Estate of Melody, 42 Ill. 2d 451, 452, 248 N.E.2d 104, 105.) Moreover, there are four types of contempt which are delineated as follows: (1) indirect contempt which entails a contumacious act committed outside the presence of the court (e.g., People v. Javaras, 51 Ill. 2d 296, 300, 281 N.E.2d 670, 672; Kay v. Kay, 22 Ill. App. 3d 530, 318 N.E.2d 9 (abstract opinion)); (2) direct contempt which involves an act committed in the presence of the court (e.g., People v. Clark, 4 Ill. App. 3d 301, 303, 280 N.E.2d 723, 724; Kotowski v. Kotowski, 3 Ill. App. 3d 231, 233, 278 N.E.2d 856, 857); (3) civil contempt which consists of failing to do something ordered by the court, usually for the benefit of the opposing litigant (e.g., People ex rel. Kazubowski v. Ray, 48 Ill. 2d 413, 416, 272 N.E.2d 225, 226, cert denied, 404 U.S. 818, 30 L. Ed. 2d 118, 92 S. Ct. 78; Sullivan v. Sullivan, 16 Ill. App. 3d 549, 551-52, 306 N.E.2d 604, 605); and (4) criminal contempt which comprises conduct directed against the dignity and authority of the court or the judge acting judicially (e.g., Sullivan v. Sullivan, 16 Ill. App. 3d 549, 551, 306 N.E.2d 604, 605; George v. Toal, 6 Ill. App. 3d 329, 286 N.E.2d 41 (abstract opinion)).
4, 5 Applying these categorical distinctions of contempt to the case at bar, it is clear that the instant controversy involves indirect civil contempt. Although we initially note the conscientious concern of the trial court for the welfare of the parties' children, we are of the opinion that it should not have held the plaintiff in contempt since it is well established in Illinois that in proceeding to punish one for indirect contempt of court, the alleged contemnor is entitled to a hearing where extensive evidence is produced. (E.g., People v. Javaras, 51 Ill. 2d 296, 300, 281 N.E.2d 670, 672; People v. Stafford, 118 Ill. App. 2d 453, 255 N.E.2d 17 (abstract opinion).) While the record evidences that many proceedings were held and orders entered regarding the defendant's various petitions for a rule to show cause, we are not satisfied that the plaintiff, who had difficulty with her two previous attorneys and who did not appear *389 at certain dispositions, was afforded a full hearing on the matter of contempt. The only proceeding in which the court and counsel for the respective parties attempted to discuss this matter in depth occurred on September 25, 1974, the date the plaintiff was found guilty of wilful contempt. The report of proceedings for that date reveals a colloquy between the court and the counsel for both parties in which the defendant's attorney, after presenting a petition for rule to show cause, made representations to the court about the plaintiff's conduct pertaining to visitation of the parties' children. Subsequent to inquiring from each counsel as to the course of action that should be undertaken regarding the defendant's petition, the record shows that the court then invited both counsel into chambers. Thus, in light of such a record, we can only presume that the issue of contempt was heard by the court in chambers without the parties being sworn or an opportunity afforded both sides to present evidence or cross-examine witnesses. We therefore conclude that even though the plaintiff is not free to disobey court orders and unilaterally disregard the edict concerning visitation rights, evidence must be heard before the plaintiff's conduct can be held to be of a wilful and contumacious character.
For the foregoing reasons we hold that plaintiff's motion to vacate the decree for divorce should have been granted and that the order of contempt and attachment of plaintiff is to be quashed. The cause is therefore remanded to the circuit court for further proceedings consistent with this opinion.
Reversed and remanded.
DIERINGER, P.J., and JOHNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902824/ | Appeal from an order of the Supreme Court (Doran, J.), entered April 28, 1987 in Albany County, which denied defen*921dant’s motion to dismiss the complaint for failure to comply with the Statute of Limitations.
Order affirmed, without costs, upon the opinion of Justice Robert F. Doran. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534784/ | [Cite as State v. Ballard, 2020-Ohio-2967.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1089
Appellee Trial Court No. CR0201803286
v.
Donald Ballard DECISION AND JUDGMENT
Appellant Decided: May 15, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
ZMUDA, P.J.
{¶ 1} Appellant, Donald Ballard, appeals the March 14, 2019 judgment of the
Lucas County Court of Common Pleas finding him guilty of breaking and entering as
well as determining he committed a felony while subject to postrelease control from a
prior sentence. Because appellant alleges an error which is not part of the record before
us, we summarily overrule appellant’s assignment of error and affirm the judgment of the
trial court.
I. Background
{¶ 2} On December 21, 2018, appellant was indicted on one count of breaking and
entering in violation of R.C. 2911.13 (A) and (C), a fifth-degree felony. At his January 2,
2019 arraignment, appellant entered a not guilty plea. The trial court set appellant’s bond
at $10,000, appointed him trial counsel based on his affidavit of indigency, and remanded
him to custody with the Lucas County Sherriff’s Department.
{¶ 3} On February 26, 2019, appellant appeared before the trial court for a change
of plea hearing. At that time, appellant withdrew his not guilty plea and entered a plea of
no contest. The trial court found appellant guilty and ordered him to participate in the
preparation of a presentence investigation report.
{¶ 4} Appellant appeared for sentencing on March 14, 2019. At sentencing, the
trial court imposed a prison term of 10 months on appellant’s breaking and entering
charge. The trial court also determined that appellant was on postrelease control at the
time he committed the breaking and entering offense. The trial court, therefore, imposed
an additional prison term of 106 days as a sanction pursuant to R.C. 2929.141 for
appellant’s commission of a felony while on postrelease control. Pursuant to R.C.
2929.141(A)(1), appellant’s conviction for breaking and entering was ordered to run
consecutive to the postrelease control sanction by operation of law.
2.
{¶ 5} Appellant, proceeding pro se, filed an untimely notice of appeal on April 23,
2019. Contemporaneous with the notice of appeal, appellant filed a motion with the trial
court for the appointment of appellate counsel. The trial court granted appellant’s motion
and on April 26, 2019, appellant’s newly appointed counsel filed a motion for leave to
file a delayed appeal. We granted appellant’s motion on May 17, 2019. Appellant then
filed an amended notice of appeal on May 28, 2019. Appellant asserts the following
assignment of error for our review:
Appellant’s judicial sanction was increased after sentencing by the
trial court in violation of R.C. 2953.08(G)(2), by plain error, or in violation
of the double jeopardy clause of the fifth amendment to the U.S.
Constitution.
II. Law and Analysis
{¶ 6} Appellant’s entire argument on appeal is based on his contention that the
trial court permitted the Ohio Department of Rehabilitation and Corrections (“ODRC”) to
alter his sentence after final judgment. Specifically, he alleges the date for his release
from prison as determined by ODRC is not consistent with the sentence imposed by the
trial court. In support of his argument, appellant attached to his brief a document
identified as “Exhibit A” and represented to be a printout from the ODRC website
reflecting his stated prison term as “1 year and 10 months.” The document does appear
to show a prison term exceeding the aggregate prison term the trial court imposed on
appellant for his conviction for breaking and entering and the sanction for his violation of
3.
postrelease control—10 months and 106 days, respectively. However, appellant fails to
identify any portion of the record which suggests the trial court committed, or permitted,
an error in calculating his release date.
{¶ 7} Moreover, we note that Exhibit A to appellant’s brief is not part of the trial
court’s record. Appellant first introduced this document on appeal as evidence of the trial
court’s purported error. “[A] reviewing court can only reverse the judgment of a trial
court if it finds error in the proceedings of such court[.]” State v. Ishmail, 54 Ohio St. 2d
402, 405, 377 N.E.2d 500 (1978). Therefore, “it follows that a reviewing court should be
limited to what transpired in the trial court as reflected by the record made of the
proceedings.” Id. at 405-406. “A reviewing court cannot add matter to the record before
it, which was not a part of the trial court’s proceedings, and then decide the appeal on the
basis of the new matter.” State v. Wallace, 6th Dist. Wood No. WD-11-031, 2012-Ohio-
2675, ¶ 15, citing Ishmail at syllabus. Since the printout from the ODRC’s website was
not part of the proceedings in the trial court, it can neither be added to the record for our
review nor serve as the basis for our reversal of the trial court’s judgment.
{¶ 8} Having determined appellant’s Exhibit A is not part of the record and not
subject to our review, we find that the remainder of appellant’s brief fails to assign any
cognizable error or reference any portion of the trial court record to show how the trial
court committed reversible error. App.R. 16(A)(3) requires appellants to include in their
briefs “[a] statement of the assignments of error presented for review, with reference to
the place in the record where each error is reflected.” App.R. 12(A)(2) states “[t]he court
4.
may disregard an assignment of error presented for review if the party raising it fails to
identify in the record the error on which the assignment of error is based or fails to argue
the assignment separately in the brief, as required under App.R. 16(A).”
{¶ 9} Appellant’s assignment of error alleges the trial court permitted an improper
increase of his sentence after final judgment was entered. Appellant fails to demonstrate,
however, that he raised this release date calculation error with the trial court. Moreover,
he fails to demonstrate exactly how the trial court is responsible for this miscalculation.
The record is devoid of any evidence the trial court had an opportunity to rule upon his
contention regarding his release date. Further, appellant concedes that the trial court’s
judgment in imposing sentence was valid and noted he had no objection to his sentence.
It is entirely unclear, then, what error appellant alleges the trial court committed when he
agrees that the sentence imposed was valid.
{¶ 10} Ohio Adm.Code 5120-2-03 et seq. establishes the procedure by which
ODRC determines an imprisoned offender’s release date. When an offender serving a
properly imposed prison term believes ODRC has miscalculated their release date, the
recalculation of that date is accomplished through a declaratory judgment action. See
Hinton v. Ohio Bureau of Sentence Computation, 2018-Ohio-237, 105 N.E.3d 457 (10th
Dist.); State ex rel. Earl v. Shafer, 85 Ohio St. 3d 370, 708 N.E.2d 714 (1999); Nicholson
v. North Central Correctional Institution, 3d Dist. No. 9-02-44, 2003-Ohio-303. In that
instance, the offender is not challenging the underlying judgment of the trial court but is
instead mounting a collateral civil attack against ODRC’s application of Ohio Adm.Code
5.
5120-2-03 et seq. Hinton at ¶ 10-11. Here, appellant seeks to obtain recalculation of his
release date through direct appeal of the trial court’s judgment rather than by initiating a
declaratory judgment action. By foregoing the proper vehicle for the remedy he seeks,
appellant has failed to identify any error committed by the trial court which would permit
our review of his claimed error pursuant to App.R. 12.
{¶ 11} Put simply, appellant believes his release date has been incorrectly
calculated by ODRC, but he makes no reference to the record, as required by App.R.
16(A)(3), indicating how the trial court made or permitted that miscalculation.
Therefore, we summarily overrule his assignment of error pursuant to App.R. 12(A)(2)
and affirm the judgment of the trial court. See Mtge. Electronic Registration Sys. v.
Mullins, 161 Ohio App. 3d 12, 2005-Ohio-2303, 829 N.E.2d 326, ¶ 22 (4th Dist.).
III. Conclusion
{¶ 12} Appellant’s assignment of error is overruled. We therefore affirm the
March 14, 2019 judgment of the Lucas County Court of Common Pleas. Appellant is
ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
6.
State v. Ballard
C.A. No. L-19-1089
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
7. | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4534786/ | [Cite as In re J.J., 2020-Ohio-2971.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re J.J. Court of Appeals No. L-19-1297
Trial Court No. JC 18267511
DECISION AND JUDGMENT
Decided: May 15, 2020
*****
Adam H. Houser, for appellant.
Kevin J. Ankney, for appellee.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a December 2, 2019 judgment of the Lucas County
Court of Common Pleas, Juvenile Division, which terminated the parental rights of
appellant, mother of the subject minor child, J.J., and granted custody of the child to
appellee, Lucas County Children Services (“LCCS”).
{¶ 2} We note that this appeal is narrow in scope. Appellant’s principal argument
on appeal is that the trial court erred, against the manifest weight of the evidence, in not
granting appellant an additional extension of time in which to resume case plan services,
which appellant had unsuccessfully ceased prior to the permanent custody filing.
{¶ 3} Appellant does not dispute the substantive merits of the chief trial court
determinations that LCCS made the requisite R.C. 2151.419 reasonable efforts in this
case prior to pursuing permanent custody, and does not dispute that the award of
permanent custody to LCCS was in the best interest of the child pursuant to R.C.
2151.414(D)(1).
{¶ 4} In support of the judgment in favor of appellee, the trial court cited the
irrefutable evidence of appellant’s ongoing drug dependency, including usage of crack
cocaine, oxycodone, and marijuana, appellant’s ongoing unstable housing, appellant’s
unsuccessful discharge from mental health services, appellant’s ongoing involvement
with an abusive significant other, and the lack of a suitable relative placement.
{¶ 5} The facts and evidence underpinning these trial court determinations reflect
that custody restoration between appellant and the minor child was not viable and the
award of permanent custody to LCCS was in the best interest of the child.
{¶ 6} As referenced above, appellant principally asserts on appeal that she should
have been granted another extension of time in order to resume participation in case plan
services, which appellant had ceased approximately three months prior to the permanent
custody filing.
2.
{¶ 7} Unfortunately, the record of evidence reflects appellant’s lack of
engagement in services, lack of acknowledgment of the serious underlying issues, and
lack of progress in the chief areas of concern. Accordingly, assertions that another
extension of time was warranted are without merit. For the reasons set forth more fully
below, the judgment of the trial court is hereby affirmed.
{¶ 8} On March 7, 2018, LCCS filed a complaint in dependency and neglect, in
addition to a motion for an emergency shelter care hearing, pertaining to appellant’s
minor child, J.J. LCCS had familiarity with appellant as the permanent custody of a
sibling of J.J. had previously been awarded to LCCS.
{¶ 9} On August 15, 2018, J.J. was adjudicated to be a dependent child.
Accordingly, temporary custody was granted to LCCS. On September 17, 2018, a trial
court case status hearing determined that LCCS was making the requisite statutory
reasonable efforts in this case.
{¶ 10} On March 7, 2019, appellee was granted a six-month extension of
temporary custody of the minor child. In May of 2019, appellant ceased engagement in
LCCS case plan services.
{¶ 11} On July 23, 2019, LCCS filed a motion for permanent custody in this
matter. On November 14, 2019, the permanent custody adjudicatory hearing was
conducted. On December 2, 2019, the trial court found, “by clear and convincing
evidence that the child cannot be placed with either of the child’s parents within a
reasonable time [the father is deceased], or should not be placed with the child’s mother,
3.
pursuant to R.C. 2151.414(B)(1)(a).” Pursuant to R.C. Chapter 2151, the minor was
determined to be a dependent child. LCCS was awarded permanent custody. This appeal
ensued.
{¶ 12} The record reflects that at the November 14, 2019 permanent custody trial,
the trial court first heard detailed testimony from the assigned LCCS caseworker. The
caseworker’s testimony delineated that based upon the agency investigation into this
matter, the primary case plan services required for appellant included substance abuse
services, mental health services, domestic violence services, as well as services pertaining
to appellant’s chronic unstable housing.
{¶ 13} The testimony of the caseworker, consistent with the documentation
submitted by appellant’s substance abuse service providers, reflected that although
appellant initially participated in substance abuse services, she subsequently discontinued
all services.
{¶ 14} In conjunction with this, appellant consistently minimized her severe drug
dependency issues. Despite being furnished with the necessary drug dependency
services, prior to the permanent custody filing appellant tested positive for oxycodone,
marijuana, and acknowledged her continued usage of crack cocaine.
{¶ 15} With respect to appellant’s ongoing crack cocaine usage, she
unconvincingly denied drug dependency issues. Appellant downplayed her use of crack
cocaine as “a choice,” that she could cease any time of her own accord.
4.
{¶ 16} Not surprisingly in light of the above, the record reflects that appellant’s
drug dependency issues persist. Appellant has failed to demonstrate progress on, or an
acknowledgement of, the seriousness of the issue and the need for it to change.
{¶ 17} In May 2019, appellant ceased participation in all case plan services,
including drug abuse services. Approximately three months after appellant’s cessation of
case plan services, LCCS filed for permanent custody.
{¶ 18} With respect to the needed mental health services, the trial testimony
reflected that appellant’s participation and compliance with those services has been
sporadic. Appellant was discharged unsuccessfully from those services prior to the
permanent custody filing.
{¶ 19} The caseworker testimony pertaining to the needed domestic violence
services reflected that appellant’s significant other, whom appellant herself acknowledges
is abusive, failed to participate in the needed services. In addition, appellant’s own
participation in domestic violence related services was unable to proceed due to
appellant’s failure to demonstrate progress in substance abuse services so that domestic
violence services could commence.
{¶ 20} Although appellant maintained that she had ceased her relationship with
her abusive significant other, the record inconsistently reflects that appellant still refers to
the abuser as “her man,” remains in regular contact with him, and continues to depend
upon him in multiple ways. The record reflects that appellant’s domestic violence issues,
implicating the safety of the minor child, have not been remediated.
5.
{¶ 21} With respect to appellant’s persistent unstable housing, the trial testimony
and related documentary records reflect that appellant’s housing history during the
relevant time frame has ranged from staying in a hotel, staying in her car, staying with
friends, staying in various area housing shelters, and spans of time in which her
whereabouts were unknown. The record reflects that appellant’s highly unstable housing
situation has not been remediated.
{¶ 22} The trial testimony of the LCCS caseworker and the assigned guardian ad
litem (“GAL”) detailed the considerable reasonable efforts undertaken by the agency in
an effort to locate an acceptable alternative family placement for the minor child.
Unfortunately, no suitable placement was found to be available.
{¶ 23} A potential placement with a maternal aunt was explored. However, the
child ultimately had to be removed from that placement as the relative was not
successfully ensuring that the minor child participated in required services, in addition to
exposure to substance abuse issues, adverse to the best interests of the minor, in that
placement.
{¶ 24} Subsequently, a potential placement was explored with a maternal uncle.
However, further investigation revealed that this relative possessed a disqualifying
criminal history, including the past sexual assault of a sibling.
{¶ 25} Notably, concerns regarding the unsuitability of potential relative
placement with the uncle had previously been expressed by appellant herself to those
involved in this case, including the GAL and the caseworker.
6.
{¶ 26} The record reflects that both the caseworker and the GAL ultimately
concluded and testified that it would be in the best interest of the minor child for
permanent custody to be awarded to appellee.
{¶ 27} During her testimony to the trial court, appellant did not refute the above-
described circumstances. Rather, appellant requested another extension of time based
upon the unilateral representation that, if granted, she would return into the above-
described needed services in an effort to address the underlying issues. However, the
bulk of evidence in this matter runs counter to the credibility of those representations.
{¶ 28} At the conclusion of the trial, pursuant to R.C. 2151.414(B)(1)(a), the trial
court found by clear and convincing evidence that the father of the minor child is
deceased, and that the minor child should not be placed with the mother. The trial court
further determined, pursuant to R.C. 2151.414(E)(1), the mother had failed consistently
and repeatedly to substantially remedy the conditions that preclude the child’s placement
with the mother, pursuant to R.C. 2151.414(E)(2), the mother’s severe chemical
dependency issues, including ongoing use of oxycodone, crack cocaine, and marijuana,
preclude her provision of an adequate permanent home for the child, and pursuant to R.C.
2151.414(E)(11), the mother’s parental rights had been involuntarily terminated on a
previous occasion with respect to a sibling of the subject minor child.
{¶ 29} Accordingly, given these facts and circumstances, the trial court
determined pursuant to R.C. 2151.414(D)(1)(c) and (d), an award of permanent custody
7.
of J.J. to LCCS is in the best interest of the child as a legally safe, secure, and permanent
environment must be provided for the child. This appeal ensued.
{¶ 30} In the sole assignment of error, appellant unpersuasively maintains that the
trial court erred and acted against the manifest weight of the evidence in denying
appellant’s request at trial for an additional extension of time in which to attempt to
successfully engage in the services mandated by LCCS as prerequisites for a potential
reunification. We do not concur.
{¶ 31} It is well-established that in determining whether a disputed trial court
judgment is against the manifest weight of the evidence, the appellate court reviews the
record, weighs the evidence and reasonable inferences, considers the credibility of the
witnesses and conflicts in the evidence presented, and determines whether the trier of fact
clearly lost its way so as to cause a manifest miscarriage of justice. State v. Prescott, 190
Ohio App. 3d 702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.).
{¶ 32} In support of this appeal, appellant contends that the relevant parties, “did
not do any investigation into the [potential placement of the child with the] family
member [the above-discussed maternal uncle] in Illinois.” The record of evidence does
not bear out this claim.
{¶ 33} Contrary to this assertion on appeal, the record reflects that prior to these
proceedings, appellant herself expressed concerns to both the LCCS caseworker and the
GAL regarding the impropriety of a potential placement of the minor child with the
maternal uncle from Illinois.
8.
{¶ 34} Appellant conveyed to them that her uncle had a criminal record, had
sexually assaulted a sibling, and would not be a suitable placement. The subsequent
home study conducted regarding the uncle verified the disqualifying background of the
uncle.
{¶ 35} The testimony of the GAL similarly detailed his discussions with both
appellant and the caseworker regarding a potential placement with the uncle. The
discussions made clear the consensus amongst all parties, including appellant, that any
such placement was ill-advised given the uncle’s concerning criminal history, including
the prior sexual assault of a sibling.
{¶ 36} In addition, we note that the uncle declined to file an entry of appearance in
this matter, or otherwise seek custody of the minor child. Further, prior to this appeal,
appellant never conveyed to the court, or otherwise notified anyone involved in this
matter, of a desire for custody to be granted to the uncle. Appellant conveyed a contrary
position regarding the uncle, undercutting her present claim.
{¶ 37} Accordingly, appellant’s present assertion that the trial court failed to give
proper consideration to an alternative relative placement of J.J. with the above-discussed
maternal uncle is contrary to the record of evidence, contrary to appellant’s own prior
position on the matter, and without merit.
{¶ 38} Given these facts and circumstances, the trial court properly found that
LCCS made reasonable efforts to prevent the removal of the minor child and undertook
reasonable efforts working with the mother towards a permanent plan for reunification
9.
with the minor child. The trial court further properly found, and the record clearly shows
that the child’s need for a legally secure permanent placement could not be achieved
without a grant of permanent custody of the child to LCCS.
{¶ 39} The record is devoid of evidence showing that the trial court clearly lost its
way and caused a manifest miscarriage of justice in this matter.
{¶ 40} Wherefore, we find appellant’s sole assignment of error not well-taken.
{¶ 41} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, is hereby affirmed. Appellant is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
10. | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4534787/ | [Cite as In re E.A., 2020-Ohio-2969.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re E.A., H.A. Court of Appeals No. L-19-1286
Trial Court No. JC 17264893
DECISION AND JUDGMENT
Decided: May 15, 2020
*****
Laurel A. Kendall, for appellant.
Kevin J. Ankney, for appellee.
*****
SINGER, J.
{¶ 1} This is an appeal from the November 18, 2019 judgment of the Lucas
County Court of Common Pleas, Juvenile Division, terminating the parental rights of
appellant, E.S., the mother of E.A. and H.A. (“the children”), and granting permanent
custody of the children to appellee, Lucas County Children Services (“LCCS”). For the
reasons that follow, we affirm the judgment.
{¶ 2} Appellant sets forth two assignments of error:
I. The dispositional timeline was not proven by clear and
convincing evidence when no certified copies of court orders were
introduced as evidence, and no testimony concerning a motion to extend
temporary custody occurred on the record of the final hearing.
II. In the alternative, the trial court’s decision to award custody to
Lucas County Children Services pursuant to R.C. 2151.414(E)(1) and
(E)(14) and R.C. 2151.414(D 1) was based on insufficient evidence, and/or
was against the manifest weight of the evidence.
Background
{¶ 3} Appellant is the mother of E.A., who was born in November 2011, and H.A.,
who was born in May 2013. D.A is the father of the children. At the time the children
were born, mother and father were in a relationship, but were not married.
2016
{¶ 4} In November 2016, LCCS became involved with the family due to substance
abuse, mental health concerns and domestic violence issues between mother and father.
A safety plan was instituted which consisted of the children staying with the paternal
grandmother. In addition, case plan services were offered including: parenting classes;
domestic violence counseling; dual diagnostic assessment; substance abuse treatment;
housing; and mental health treatment for mother.
2.
2017
{¶ 5} On September 19, 2017, LCCS filed a non-emergency complaint in
dependency and neglect and for protective supervision alleging: father was charged with
domestic violence for an incident that occurred with mother, in November 2016; mother
obtained a protective order against father; and both parents accused the other of substance
abuse. LCCS further alleged mother completed domestic violence counseling, obtained
housing, engaged in mental health treatment, started a parenting program, visited with the
children at the grandmother’s home, mother tested positive for marijuana in January 2017
and August 2017, and failed to comply with substance abuse education.
{¶ 6} On September 28, 2017, the court appointed a special advocate/guardian
ad litem (“CASA/GAL”) for the children.
{¶ 7} On November 6, 2017, the CASA/GAL filed a report and recommendation.
{¶ 8} On November 8, 2017, a hearing was held. On November 22, 2017, the
magistrate issued a decision adjudicating the children dependent, with the parents’
consent, and granting LCCS protective supervision over the children while they lived
with mother.
{¶ 9} On November 29, 2017, LCCS filed a motion to change disposition and
requested an emergency hearing. LCCS asserted mother reported the following to a
caseworker: she was assaulted by her paramour, Sam, in early November 2017, after
accusing him of stealing her 40-pill prescription of Percocet; she was thrown against the
television, which broke, and she had a black eye; she and the children were going to
3.
reside with her dad’s ex-wife; and her 24-pill prescription of Percocet was also missing.
LCCS further asserted mother reported to another caseworker: Sam beat her up and she
was homeless, moving from place to place with the children; she was not truthful about
the missing Percocet and why she had missed parenting meetings. LCCS alleged mother
missed a home visit and five parent-child observations in October and November 2017.
In addition, LCCS asserted at the November 28, 2017 family case conference, mother
reported she and the children are living with Sam and mother recanted her previous
claims of domestic violence with Sam.
{¶ 10} Also on November 29, 2017, a hearing was held and LCCS was granted
interim temporary custody of the children. The children were placed in a foster home.
2018
{¶ 11} On January 26, 2018, a motion to change disposition hearing was held
before the magistrate; mother attended, as did the caseworker and CASA/GAL. On
February 8, 2018, the magistrate issued a decision ordering, by a preponderance of the
evidence, it was in the best interest of the children to grant temporary custody of the
children to LCCS effective January 26, 2018. On February 23, 2018, the judge filed a
judgment entry in which she ordered that, by a preponderance of the evidence, granting
temporary custody of the children to LCCS was in the children’s best interest.
{¶ 12} On August 16, 2018, LCCS filed a motion for extension of temporary
custody of the children. LCCS alleged the children were engaged in trauma counseling,
mother made progress in her case plan services including substance abuse, mental health,
4.
parenting and domestic violence. LCCS also alleged a six-month extension was in the
best interest of the children, as there was reasonable cause to believe that the children
would be reunified with one of the parents or otherwise permanently placed within the
period of extension. On September 18, 2018, a hearing was held, and on September 19,
2018, the magistrate issued a decision ordering, by clear and convincing evidence, it was
in the children’s best interest to extend LCCS’s temporary custody. On September 25,
2018, the judge filed a judgment entry granting an extension of LCCS’s temporary
custody of the children, in which she ordered, by clear and convincing evidence, it was in
the children’s best interest to extend LCCS’s temporary custody.
2019
{¶ 13} On January 24, 2019, LCCS filed a motion to change placement, terminate
temporary custody and to determine support and visitation. On February 21, 2019, a
hearing was held. The magistrate issued a decision that same day finding mother
completed all services, has housing and continues with mental health counseling. The
magistrate further found the children were engaged in counseling and it was in their best
interest for mother to have legal custody, with LCCS’s protective supervision. The
children were returned to mother that day. Mother was living with her paramour, Melvin.
{¶ 14} On March 20, 2019, LCCS filed a motion to change disposition and
requested an emergency hearing. LCCS asserted on February 25, 2019, its caseworker
met with mother and the children at Melvin’s house, and mother reported Melvin had
served her with a 30-day eviction notice. LCCS further asserted on March 12, 2019, its
5.
caseworker learned two calls were made to 911 to report domestic violence incidents, one
call in November 2018 and one call on March 10, 2019. Mother told the caseworker the
children were at an aunt’s house when the March 10, 2019 incident occurred, but when
the caseworker called the aunt, the aunt denied the children had been there. Mother then
admitted the children were present for the domestic violence incident. Mother stated
Melvin called 911 and he said she would lose her children, so mother and the children
left the home and were staying with a friend. In addition, LCCS asserted on March 13,
2019, its caseworker met with the children who said Melvin hit mother and they were in
the bedroom crying. LCCS also asserts on March 12, 13 and 18, 2019, it was requested
that mother “drop urine,” but she failed to do so.
{¶ 15} Also on March 20, 2019, a hearing was held. The magistrate issued a
decision that same day ordering interim temporary custody of the children to LCCS. The
children were removed from mother’s care and were placed with mother’s aunt before
going to a foster home.
{¶ 16} A hearing was held on May 29, 2019, and the magistrate issued a decision
on May 31, 2019, awarding temporary custody of the children to LCCS. The magistrate
noted the issues to be addressed through services include mental health, substance abuse
and domestic violence. The caseworker testified the children were present for the
February 2019 domestic violence episode, there were new substance abuse concerns,
mother has to find independent housing and submit to drug screens and continue in
services. The children remained in foster care.
6.
{¶ 17} Also on May 29, 2019, mother was drug tested, and on May 30, 2019, the
test results showed mother tested positive for Buprenorphine (Suboxone) and EtG
(alcohol).
{¶ 18} On July 2, 2019, LCCS filed a motion for permanent custody of the
children, and to extend temporary custody.
{¶ 19} On October 24, 2019, the CASA/GAL filed her final report and
recommendation. A hearing was held on November 7, 2019; mother participated, father
did not.
{¶ 20} On November 18, 2019, the court issued its judgment entry, granting
permanent custody of the children to LCCS. Mother appealed. Father is not a party to
this appeal.
The Permanent Custody Hearing
{¶ 21} Mother attended the hearing and testified. LCCS called two witnesses, the
caseworker and the CASA/GAL. The testimony which is relevant to mother’s appeal is
summarized below.
Caseworker Flowers
{¶ 22} Da’Nelle Flowers testified she was an ongoing caseworker for LCCS, and
started working with mother, father and the children in November 2016. The initial
concerns were domestic violence between the parents and help was needed with the
children. An in-home safety plan was implemented, which included the children being
placed with their paternal grandmother, and grandmother supervising the separate visits
7.
of mother and father. Mother was to complete the following services: a domestic
violence course; parenting; substance abuse; and a mental health diagnosis. Mother did
complete a domestic violence course and a parenting course.
{¶ 23} Around November 2017, there was a domestic violence incident with
mother and her new boyfriend, Joe, after mother had completed the domestic violence
course. The children were adjudicated dependent in early November 2017. Thereafter,
protective supervision was granted, and mother was in a relationship with Sam by that
time. It was then discovered that there was a domestic violence incident between mother
and Sam, where mother received a black eye. At first, mother said she received the black
eye at work, but then she admitted it was due to a domestic violence incident. LCCS
took temporary custody of the children in November 2017, and the children went to a
foster home, where they stayed for two months before being transferred to another foster
home. There was another domestic violence incident between mother and Sam on
December 14, 2017, after the children had been removed from mother’s care.
{¶ 24} Flowers testified mother completed two parenting courses, two domestic
violence courses, underwent assessments where it was recommended that she go to
counseling and a marijuana course; mother complied. Mother was put in touch with a
community advocate in November 2018, to help link mother with outside resources.
{¶ 25} Mother consistently visited with the children and there were some minor
concerns, but no glaring issues. Overall, mother did well in the visits, bringing food for
the children and playing games, doing crafts or playing outside with the children.
8.
{¶ 26} On February 21, 2019, the children were returned to mother’s care, and
LCCS was granted protective supervision. Mother lived with her boyfriend, Melvin.
Flowers went for the five-day home visit with mother and found mother crying. Mother
said she and Melvin were not getting along and he had given her an eviction notice so she
and the children had to move out of his home. Mother did not mention any domestic
dispute issues. When Flowers left, mother and the children were still at Melvin’s home.
Flowers set mother up with a community advocate to help get mother housing.
{¶ 27} Flowers ran 911 calls and discovered there was one domestic dispute
between mother and Melvin on November 23, 2018, and another dispute on March 10,
2019. If Flowers would have known about the November 2018 incident, it would have
impacted her decision and changed the plan as far as reunifying the family in Melvin’s
home. Mother was asked about the incidents and said the November 2018 call happened
because Melvin was abusing drugs and he assaulted her, and the March 2019 call was a
malicious call by Melvin when mother was trying to get her and the children’s belongings
from the home. The children were removed from mother’s care in March 2019, and
placed with a relative. Thereafter, the children were moved to a foster home.
{¶ 28} With respect to mother dating Melvin, Flowers received a report that
mother was seen leaving a visitation with Melvin around June of 2019. Flowers had
concerns because mother completed domestic violence courses, but still remains in
contact with the domestic violence abusers, so it is unclear if mother can keep the
children safe. Mother’s pattern is to go from man to man to man. Mother told Flowers
9.
the children witnessed domestic violence by their father and heard other domestic
violence incidents.
{¶ 29} Regarding the children’s behavior, E.A. has had issues with aggression at
school and in the foster home, so he was referred for counseling. In the current foster
home, E.A.’s behaviors seemed to escalate as he harmed animals and stabbed a kid at
school with a pencil. E.A. went back to counseling and he is doing much better. E.A.
has an IEP at school for his behaviors.
{¶ 30} Flowers noted housing has been a case plan service for mother because
throughout the case, mother has not had stable, independent housing. Mother was
currently residing with her dad in a one-bedroom apartment, which is not appropriate for
the children because it is too small of a space.
{¶ 31} Flowers talked with E.A., and the majority of the time, he said he wanted to
be with mother. Flowers could not think of any other services mother could be offered.
Flowers does not think mother takes responsibility for the situation her children are in,
and Flowers believed it was in the children’s best interest for LCCS to be awarded
permanent custody.
Mother
{¶ 32} Mother testified that she finished her last domestic violence course in
October 2018. Mother discussed what she learned in the reunification classes and how to
care for the children and handle their behaviors. She also talked about the domestic
10.
violence survivors’ course she took and passed, and the fact that she had to take a second
course because of the incident between her and Sam.
{¶ 33} Mother testified that she missed some drug screens because of
emergencies, her child was in the hospital, transportation issues, child care issues or the
paperwork was not there so she could not leave a sample to be tested.
{¶ 34} After the March 10, 2019 domestic violence incident with Melvin, mother
stated that she and the children left Melvin’s house and lived with two of her girlfriends
for about two weeks. Then, the children were placed in the temporary custody of
mother’s aunt for a while before LCCS took custody of the children. At that point,
mother went to live with her dad.
{¶ 35} Mother was asked by the judge when the last time was that she was with
Melvin. Mother responded the last time she physically saw Melvin was in June 2019.
Mother said she went back with Melvin after the March 2019 fight for just one day,
which was the time she tested positive for Suboxone. Mother said her last contact with
Melvin was in July 2019, when she was asking to retrieve her belongings from his
garage.
{¶ 36} Mother was cross-examined about her contact with Melvin after the March
2019 domestic violence incident, and she was asked if she had contact with him in April
or early May 2019, because that is when she tested positive for Suboxone. Mother
agreed she had contact with him, but that was her last contact. Mother was reminded that
11.
she was seen with Melvin in June 2019, following a visit. Mother acknowledged she saw
Melvin after she tested positive for Suboxone.
{¶ 37} Mother testified she called 911 in August 2019, because Melvin was
harassing her and threatened to commit suicide, but there was no physical violence
between them.
{¶ 38} Mother was asked about her counseling sessions, and if the last time she
attended was August 29, 2019. Mother ultimately admitted that was her last session.
{¶ 39} Mother talked about her visits with the children, the last of which was the
previous Saturday, and how she only missed visits if she was sick with a fever over 101
degrees. Mother recalled the different activities she and the children did together, like
having birthday parties, making silly hats and pet rocks, and decorating pumpkins.
{¶ 40} At the time of the hearing, November 7, 2019, mother was not in any
relationship and she was focusing on herself and her children so they could heal from
everything that they experienced. Mother took responsibility for what happened with the
children, saying it was all her fault. Mother was asked how her life has changed since
June 2019. Mother said she is supposed to be getting housing and she is going to get her
driver’s license next week so she can start working. Mother stated she has a job waiting
for her as a pizza delivery driver. Mother said she has worked during the case.
CASA/GAL
{¶ 41} Maria Gonzalez testified she was appointed the CASA for the children.
She conducted an independent examination and submitted her findings in the GAL report
12.
she filed with court. Gonzalez visited with the children when they were with the paternal
grandmother, she interviewed the caregivers, the children and mother, she met with the
caseworker, she met with father at the beginning of the case, she visited the children at
their school and she reviewed records.
{¶ 42} Gonzalez opined it was in the children’s best interest for permanent
custody to be given to LCCS. Gonzalez observed she has been on the case over the past
two years and the children have been reunited with mother two times, mother completed
all plan services, but both times it fell through. Gonzalez stated it was a very difficult
recommendation because there is no doubt of the love mother and the children have for
each other, mother is very appropriate at visits and the children love spending time with
mother. However, when the reunification fell through twice, Gonzalez could see the
detriment it caused to the children. The children had witnessed domestic violence, were
removed from the home, attended therapy, had visits with mother starting at Level 1, then
Level 2, then the children spent weekends with mother. The children would be hopeful
that this time it would be forever and they would stay, but then they were asked to leave
so the children would be sad. The children both said they want to stay with mom.
{¶ 43} Gonzalez said the situation is very hard because mother does not have
housing or stable employment, and she is still dealing with her mental situation.
{¶ 44} Regarding E.A.’s behavior, Gonzalez interviewed the foster mother and
learned through a school report about the issues, including hurting a small animal, being
very aggressive at school, using a pencil as something that could harm another child,
13.
having scissors taken away, being very angry and frustrated. Gonzalez did not see these
behaviors during visits with mother.
{¶ 45} Gonzalez has concerns because of the repeat patterns of domestic violence.
Mother has taken domestic violence classes recommended, and she acts after the fact of
the situation, which seems a little bit late because she is already in the situation.
Gonzalez saw mother getting into Melvin’s truck on June 8, 2019, after a visit and
Gonzalez was surprised to see that.
{¶ 46} Gonzalez was asked if she could, in good faith, recommend that the
children go home to mom as of today. Gonzalez replied, “Mom has no home.”
{¶ 47} Gonzalez was also asked if temporary custody was extended and at the end
of six months, mother has a job, an appropriate place to stay and has not been with any
guys for the last few months, would Gonzalez change her mind. Gonzalez stated she
asked herself that question twice before with the previous reunifications, and mother was
given time so she could be ready. Gonzalez said the children deserve more than just a
mom for a couple of hours on a weekday, and mother needs a lot of support that she does
not have right now, as she does not have a steady job or housing.
Juvenile Court’s Decision
{¶ 48} The court observed LCCS became involved with the family in November
2016, and the initial case plan services offered to mother included parenting classes,
domestic violence counseling and a dual diagnostic assessment. In addition, a safety plan
was instituted which had the children staying with their grandmother. Mother completed
14.
domestic violence counseling in June 2017, but not the other services offered. A non-
emergency protective supervision complaint was filed September 19, 2017, the children
were adjudicated neglected and dependent on November 8, 2017 and LCCS was granted
interim temporary custody of the children on November 29, 2017, then temporary
custody on January 26, 2018.
{¶ 49} The court noted mother completed all case plan services offered, so in
February 2019, the children were reunited with mother, who at that time lived with
Melvin. Due to two 911 calls reporting domestic violence with mother and Melvin, the
children were removed from mother’s care in March 2019. The court found mother
continued her relationship with Melvin after the children were removed, which was the
second time during the case that mother continued her relationship with a man even after
the relationship caused the removal of the children. The court further found mother has
not remedied the domestic violence concerns which caused the children’s removal from
the home numerous times, and mother failed to offer a credible reason why she
continually failed to remedy the issues which caused the children’s removal from the
home. The court also found mother lacked a stable and appropriate home environment
for the children. Regarding father, the court found he abandoned the children.
{¶ 50} The court found, by clear and convincing evidence, the children cannot be
placed with either parent within a reasonable period of time and should not be placed
with either parent, and despite reasonable case planning and diligent efforts by LCCS to
assist parents to remedy the problems which caused the children to be placed outside of
15.
the home, parents continuously and repeatedly failed to substantially remedy those
conditions. The court also found mother was unwilling to prevent the children from
suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
The court further found it is in the children’s best interest to award permanent custody to
LCCS for adoptive placement and planning, as the children are currently in a stable home
which meets their needs. The court found the children need a safe, secure and permanent
environment, which cannot happen without LCCS being granted permanent custody.
First Assignment of Error
{¶ 51} Mother asserts the dispositional timeline was not proven by clear and
convincing evidence because there was no testimony at the final hearing regarding the
August 16, 2018 motion to extend temporary custody, nor were certified copies of
motions or court orders introduced or filed as exhibits. Mother notes temporary custody
terminates one year after the complaint is filed or the child is placed in shelter care,
whichever is earliest, without the granting of a motion to extend custody. Mother
observes the court found the case was out of time because it was opened more than two
years before the final hearing. Mother argues LCCS did not prove, by clear and
convincing evidence, temporary custody was extended because “there was no testimony
on the record concerning the Motion to Extend Temporary Custody * * * * and the only
indication of such a motion was in a docket entry * * *.” Mother suggests we should find
the juvenile court could have extended LCCS’s temporary custody to allow her time to
stabilize housing.
16.
{¶ 52} LCCS counters it is not disputed that temporary custody was extended on
September 18, 2018, and there is no time requirement under R.C. 2151.414(B)(1)(a), that
needs to be proven by clear and convincing evidence. LCCS submits even if temporary
custody was not extended, the trial court was not divested of jurisdiction.
Law
{¶ 53} R.C. 2151.414(A)(1) provides in relevant part:
Upon the filing of a motion * * * for permanent custody of a child,
the court shall schedule a hearing and give notice of the filing of the motion
and of the hearing * * * to all parties to the action and to the child’s
guardian ad litem. * * *
The court shall conduct a hearing * * * to determine if it is in the
best interest of the child to permanently terminate parental rights and grant
permanent custody to the agency that filed the motion. The adjudication
that the child is an abused, neglected, or dependent child and any
dispositional order that has been issued in the case under section 2151.353
of the Revised Code pursuant to the adjudication shall not be readjudicated
at the hearing and shall not be affected by a denial of the motion for
permanent custody.
{¶ 54} R.C. 2151.353 states in relevant part:
(A) If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of disposition:
17.
***
(2) Commit the child to the temporary custody of any of the
following:
(a) A public children services agency;
***
(G) Any temporary custody order issued pursuant to division (A) of
this section shall terminate one year after the earlier of the date on which
the complaint in the case was filed or the child was first placed into shelter
care, except that, upon the filing of a motion pursuant to section 2151.415
of the Revised Code, the temporary custody order shall continue and not
terminate until the court issues a dispositional order under that section.
{¶ 55} R.C. 2151.415(A) states in relevant part:
(A) * * * [A] public children services agency * * * that has been
given temporary custody of a child pursuant to section 2151.353 of the
Revised Code, not later than thirty days prior to the earlier of the date for
the termination of the custody order pursuant to division (H) of section
2151.353 of the Revised Code or the date set at the dispositional hearing for
the hearing to be held pursuant to this section, shall file a motion with the
court that issued the order of disposition requesting that any of the
following orders of disposition of the child be issued by the court:
***
18.
(6) In accordance with division (D) of this section, an order for the
extension of temporary custody.
{¶ 56} It is well-settled law in Ohio that “a court speaks through its docket and
journals. Indus. Comm. v. Musselli (1921), 102 Ohio St. 10, 130 N.E. 32.” Oney v. Allen,
39 Ohio St. 3d 103, 107, 529 N.E.2d 471 (1988).
Analysis
{¶ 57} Upon review, it is clear from a reading of the plain language of R.C.
2151.414, that during the hearing on a motion for permanent custody, the juvenile court
shall not readjudicate a dispositional order previously issued under R.C. 2151.353.
{¶ 58} Here, the juvenile court followed the strictures of R.C. 2151.414. The
court granted LCCS’s motion for temporary custody of the children on January 26, 2018,
in accordance with R.C. 2151.353(A)(2)(a), then LCCS moved to extend temporary
custody on August 16, 2018. On September 19, 2018, the magistrate issued a decision
ordering, by clear and convincing evidence, it was in the children’s best interest to extend
LCCS’s temporary custody, and on September 25, 2018, the judge issued a judgment
entry, in accordance with R.C. 2151.353(G), in which she ordered, by clear and
convincing evidence, it was in the children’s best interest to extend LCCS’s temporary
custody. Since the court’s orders regarding LCCS’s temporary custody of the children
were dispositional orders made under R.C. 2151.353, the court was precluded from
readjudicating these dispositional orders at the hearing.
19.
{¶ 59} We therefore find mother’s claim that LCCS did not prove the dispositional
timeline by clear and convincing evidence because there was no testimony or certified
copies of motions or court orders introduced as exhibits at the hearing regarding
extending LCCS’s temporary custody of the children is without merit. Accordingly,
mother’s first assignment of error is found not well-taken.
Second Assignment of Error
{¶ 60} Mother argues the court’s decision to award permanent custody to LCCS
was based on insufficient evidence and/or was against the manifest weight of the
evidence.
Law—Permanent Custody
{¶ 61} The juvenile court may grant permanent custody of a child to a children
services agency if the court finds, by clear and convincing evidence: (1) the existence of
at least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the
child’s best interest is served by granting permanent custody to the agency. In re M.B.,
10th Dist. Franklin No. 04AP755, 2005-Ohio-986, ¶ 6; R.C. 2151.353(A)(4). Clear and
convincing evidence requires proof which “produce[s] in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 62} A juvenile court’s decision in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence. In re A.H.,
6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th
20.
Dist. Franklin Nos. 03AP-1167 and 03AP-1231, 2004-Ohio-3312, ¶ 28. “The underlying
rationale of giving deference to the findings of the trial court rests with the knowledge
that the trial judge is best able to view the witnesses and observe their demeanor, gestures
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d
1273 (1984). Furthermore, “[e]very reasonable presumption must be made in favor of
the judgment and the findings of facts [of the trial court].” Karches v. Cincinnati, 38
Ohio St. 3d 12, 19, 526 N.E.2d 1350 (1988). Hence, a judgment supported by some
competent, credible evidence going to all essential elements of the case is not against the
manifest weight of the evidence. Id.; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio
St.2d 279, 376 N.E.2d 578 (1978), syllabus.
Factors under R.C. 2125.414(B)(1)
{¶ 63} R.C. 2125.414(B)(1) states in relevant part:
(a) The child is not abandoned or orphaned * * * and the child
cannot be placed with either of the child’s parents within a reasonable time
or should not be placed with the child’s parents.
(b) The child is abandoned.
R.C. 2151.414(E)
{¶ 64} R.C. 2151.414(E) requires a juvenile court to find that a child cannot be
placed with either of the child’s parents within a reasonable time or should not be placed
21.
with either parent if any one of sixteen factors are met. R.C. 2151.414(E)(1)-(16). R.C.
2151.414(E)(1) and (14) provide:
(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home.
***
(14) The parent for any reason is unwilling to provide food, clothing,
shelter, and other basic necessities for the child or to prevent the child from
suffering physical, emotional, or sexual abuse or physical, emotional, or
mental neglect.
Analysis
{¶ 65} The record shows the children initially lived with mother and father, but
due to problems including domestic violence, the children went to live with the paternal
grandmother and mother visited with children. The children were returned to live with
mother and her boyfriend, but shortly thereafter, due to domestic violence, the children
were removed from mother’s care and were placed together in a foster home. After two
months, the children were placed in another foster home. Mother consistently visited the
children. About a year later, the children were returned to live with mother and another
22.
boyfriend. The children were in mother’s care for about a month before they were
removed and placed together in a third foster home. Again, mother continued to visit the
children. When the reunification between mother and the children fell through twice, it
caused detriment to the children, according to the CASA/GAL.
{¶ 66} Each time that the children were removed from mother’s care it was
because of domestic violence which occurred between mother and her then-partner. The
children heard and sometimes saw the violence. Mother completed two domestic
violence courses, yet she continued to be involved with partners who were violent.
Moreover, mother did not report the domestic violence incidents to the caseworker, and
mother was not forthright as to her contact with Melvin after their second domestic
violence incident.
{¶ 67} Mother also had a pattern of living with her current boyfriend and not
having independent, stable housing. Housing was included in mother’s case plan, but she
did not have her own residence throughout the case, including at the time of the
permanent custody hearing. In addition, mother’s employment was not consistent, and
she was not employed at the time of the permanent custody hearing. While mother
participated in almost all of the recommended case plan services, many of the issues
which caused the children to be removed from her care still exist.
{¶ 68} Upon review, we find there was clear and convincing evidence supporting
the juvenile court’s conclusion that the children cannot and should not be placed with
mother. See R.C. 2151.414(B)(1)(a). We further find the juvenile court’s conclusion that
23.
mother failed to remedy the conditions which caused the children to be placed outside of
the home is supported by clear and convincing evidence in the record. See R.C.
2151.414(E)(1). In addition, we find the juvenile court’s conclusion that mother is
unwilling to prevent the children from suffering emotional abuse or neglect is supported
by clear and convincing evidence in the record. See R.C. 2151.414(E)(14).
{¶ 69} Turning to the second prong of the permanent custody analysis, the best
interest of the children, the record shows the children were in and out of mother’s care, in
and out of two relatives’ homes and in and out of three different foster homes over the
course of the case. Mother and the children love each other, mother’s visits with the
children are very appropriate and the children love spending time with mother. When the
children were returned to mother’s care they would be hopeful that it would be forever
and they would stay with mother, but when the children had to leave mother’s care, they
were sad. E.A. had aggression and behavioral issues, for which he has an IEP at school,
and E.A. was referred to and attended counseling for his behavior. E.A.’s wish was to
live with mother, but the CASA/GAL recommended that permanent custody of the
children be granted to LCCS so that the children could have a stable home and be
adopted.
{¶ 70} Based on the foregoing, we find the juvenile court had before it clear and
convincing evidence that granting permanent custody of the children to LCCS was in the
children’s best interest, as the evidence shows mother demonstrated she is unable to
provide a safe, stable, permanent home for the children. We further find the juvenile
24.
court’s decision to grant permanent custody of the children to LCCS is supported by
sufficient competent, credible evidence and is not against the manifest weight of the
evidence. See R.C. 2151.414(B)(1)(a). Accordingly, mother’s second assignment of
error is not well-taken.
{¶ 71} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court
costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
25. | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4534789/ | [Cite as In re C.R., 2020-Ohio-2970.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
In re C.R., B.R. Court of Appeals Nos. OT-19-035
OT-19-037
OT-19-045
Trial Court Nos. 2018-JUV-140
2018-JUV-141
DECISION AND JUDGMENT
Decided: May 13, 2020
*****
Angelina Wagner, for appellant P.R.
A.R., pro se appellant.
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Dina Shenker, Assistant Prosecuting Attorney, for appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} In this consolidated appeal, appellant, P.R., the natural parent1 of minors
C.R., age 3, and B.R., age 1, appeals from the August 16, 2019 judgment of the Ottawa
1
G.R., the natural father of the children, is not a party to this appeal. Furthermore,
appellant’s other children, J.T. and A.T. are not the subject of this appeal.
County Court of Common Pleas, which placed these children in the permanent custody of
the Ottawa County Department of Job and Family Services (hereinafter “the agency”).
The maternal grandfather, A.R., also appeals from the same judgment. For the reasons
which follow, we affirm.
{¶ 2} P.R. asserts a single assignment of error on appeal:
The trial court’s finding that the children could not reasonably
be reunified with a parent was against the manifest weight of the
evidence.
{¶ 3} A.R. did not include assignments of error as required by App.R. 16(A)(3)
with references to the record. He did, however, include issues presented for review,
which we will treat as assignments of error:
1) Whether the weight of evidence warranted the denial of the maternal
grandfather, A.R., motion to intervene. [sic]
2) It should be reviewed how Connie North and the Ottawa County
Department of Job and Family Services did their Jobs [sic] during the
course of this case.
{¶ 4} A caseworker attested in her initial report and affidavit filed on March 21,
2018, and at the disposition hearing that the agency received several complaints of
physical abuse of the children in November 2017, and January 2018. These complaints
were based on allegations of domestic violence and exposure to drug trafficking and drug
abuse. Upon investigation, the parents admitted to drug use and smoking marijuana but
2.
denied drug trafficking and domestic violence, and no evidence of physical abuse of the
children was substantiated. However, the agency was given a copy of the mother’s post
on Facebook: “I stuck up for you when you broke my shoulder,” which was taken down
shortly after it was posted and determined during one investigation that the father had a
bad and violent temper, the parents smoked marijuana and drank alcohol in front of the
children, J.T., a 6 year-old, was left in charge of her younger siblings, and the house had
a serious roach infestation. While the parents agreed to voluntarily place the children in
protective services and participate in case plan services, they did not cooperate to meet
with the agency.
{¶ 5} In early February 2018, C.R. and B.R. were moved to the home of the
maternal grandmother and J.T. and A.T. to the home of a paternal aunt and uncle while
the mother healed from a broken shoulder and the father attempted to resolve the roach
infestation. In early March 2018, the agency was notified that the paternal grandmother,
who was known to traffic in drugs, moved C.R. and B.R. to her home in Florida. The
agency was also notified by two reliable sources that the parents were planning to take
their other two children, J.T. and A.T., to Florida on spring break. Both sources were
concerned that the parents were permanently moving to Florida. The agency contacted
the mother on March 20, 2018, and both the mother and father became argumentative and
threatened to take the children to Florida that night. Based on concerns the parents were
fleeing the jurisdiction of the agency and the children would remain in danger because of
3.
the exposure to drug use and domestic violence, the agency immediately sought
emergency custody of all four children and an ex parte order was issued by the court.
{¶ 6} A “complaint” consisting of an affidavit of the agency’s caseworker and a
report signed by the caseworker on agency letterhead was filed on March 21, 2018. In
the report, the caseworker asserts the agency sought emergency and temporary custody of
the four children. The caseworker asserted the children remain in danger when left in the
custody of the parents because of the exposure to drug use and domestic violence.
{¶ 7} Based on a stipulation between the parents and agency, the children were
adjudicated dependent and neglected on April 17, 2018, and allegations of abuse were
dismissed. On May 25, 2018, the agency was awarded temporary custody of the
children. On April 26, 2018, a case plan had been established requiring that the mother
participate in mental health, drug, and alcohol diagnostic assessments and complete the
recommendations, obtain financial stability and fulfill support requirements, obtain safe
and stable housing, comply with case management and home management requirements,
successfully complete parental education programs, successfully complete a batterer’s
intervention program [later determined to be inappropriate for her and replaced with IOP
and individual therapy], submit to random drug screens, and refrain from consuming
alcohol or illegal drugs while caring for or supervising her children. A similar case plan
was established for the father.
{¶ 8} A.R., the paternal grandfather, filed a petition for legal custody of all four
children on June 29, 2018, and moved to intervene on February 14, 2019. On April 16,
4.
2019, the trial court denied A.R.’s motion to intervene. The court found A.R. had not
established he has a legal right to custody or visitation with the children and therefore did
not meet the definition of “party” as set forth in Juv.R. 2(Y).
{¶ 9} The agency moved for permanent custody of C.R. and B.R. on February 21,
20192 pursuant to R.C. 2151.413(A) and 2151.414(B)(1)(a). The agency asserted the
children could not be placed with their parents within a reasonable period of time and
should not be placed with either parent because both parents had made insufficient
progress on their case plan goals and objectives despite the agency’s reasonable efforts to
assist them (R.C. 2151.414(E)(1)), failed continuously and repeatedly to substantially
remedy the conditions which caused removal, and the mother suffers from chemical
dependency that is so severe that she unable to provide an adequate permanent home now
and within one year (R.C. 2151.414(E)(2)), and the parents have demonstrated a lack of
commitment toward the children by failing to take action to provide an adequate
permanent home for them (R.C. 2151.414(E)(4)).
{¶ 10} A hearing on the agency’s and A.R.’s motions was held on June 24 and
July 29, 2019. On June 24, the trial court denied the oral motions of the parents to
continue the hearing to enable the parents to have additional time to complete the case
plan objectives because the case had been pending more than a year and the children
were in need of permanent placement.
2
The agency moved for legal custody of J.T. and A.T. as well, but those children are part
of a separate appeal.
5.
{¶ 11} Since the parents consented to an adjudication of neglect and dependency,
the only issue at trial was the disposition of the children. The following evidence was
submitted.
{¶ 12} The initial caseworker for the agency testified regarding the initial
investigations and initial case plan objectives discussed above. A second ongoing
caseworker testified about the implementation of the case plan. Regarding the mother,
the caseworker testified she worked with the parents to eliminate the roach infestation but
the landlord did not take responsibility and the parents’ efforts were not successful
because the entire building was infested. The parents were eventually evicted in May
2019, and at the time of the hearing remained homeless.
{¶ 13} Regarding the remaining case plan requirements, the caseworker found the
mother was cooperative in the beginning and attended mental health services and
parenting classes. However, once the father was incarcerated, she stopped going to
mental health services and parenting classes, did not cooperate to arrange planned visits,
and started having positive drug screens. The mother gave numerous excuses but refused
transportation assistance. Ultimately, the mother completed a budgeting class, but never
fully completed the parenting classes. She also failed to remain drug free, testing positive
off and on for illegal drugs, and she admitted to using drugs and buying drugs from a
friend. As late as June 7, 2019, the mother refused a drug screen, which is considered an
automatic positive result. The mother never obtained permanent employment and
indicated she could not work because she was in pain and had applied for disability.
6.
Once the agency moved for permanent custody, the mother indicated she was not going
to work on her case plan anymore since she was not going to get her kids back. The
caseworker denied ever telling the mother she would never be reunified with her children
and had, in fact, encouraged the mother to continue services and informed her that
unannounced visits would have to continue.
{¶ 14} Regarding the father, the caseworker testified the father completed a lot on
his case plan, although he was not initially cooperative with meetings. However, he was
required to participate in other services, which were eventually terminated. He never
finished the parenting classes. He tested positive for opiates as well as alcohol and THC
in December 2018, and refused a drug screen on June 7, 2019. While the father indicated
a desire to work toward reunification and separate from the mother because she was
holding him back, the mother and father were found together at an unannounced visit in
June 2019. The caseworker did not believe reunification with father was possible within
the next 90 days, but might be possible in 6 months.
{¶ 15} Both parents attended visitation, although the father’s visitation ended with
his incarcerations. They attended regularly and had positive interactions.
{¶ 16} The caseworker testified they permitted A.R. to have visitations while
considering him as a possible person to whom legal custody could be awarded. However,
she had some concerns about his ability to care for the children: On an outing to the
beach, A.R. left B.R. on the shore while he took C.R. into the water. Another time, the
foster parent reported C.R. had a sunburn after being with A.R. On one visit, the
7.
caseworker noted C.R. was not wearing her glasses, which were needed to correct a
disorder, and A.R. only stated she did not want to wear them. Despite repeated requests,
A.R. would not move C.R.’s toddler bed out of the living room and into a bedroom with
an older child. Finally, when the agency removed the children after bruises were found
on B.R., roaches were observed in A.R.’s home. Even though the bruises were found to
have been Mongolian birthmarks, visitations did not resume because of the roach
infestation. A.R. refused to return to supervised visitation at first, but later returned with
the mother. The caseworker did not return to visit A.R.’s home because he refused to
work with the caseworker. More recently drug screenings show positive results for THC.
{¶ 17} The agency also considered D.B. as legal custodian for the older two
children. She and their paternal grandfather had a long-term relationship of at least ten
years or more, and she has had a grandmother relationship with the older children. D.B.
testified she was committed to keeping all four children connected with each other, the
parents, and A.R.
{¶ 18} The caseworker also testified that C.R. and B.R. were eventually placed
with a foster family with children who indicated a desire to adopt both children. The
foster family also developed an open line of communication with D.B. and the parents.
{¶ 19} The ongoing caseworker recommended termination of the parents’ rights
and that the court award permanent custody to the agency for purposes of adoption by the
foster family. The caseworker based her recommendation on the need for permanency,
the indications that the parents will not make further progress on the case plans, and that
8.
the foster family and D.B. have indicated they will foster relationships between the
children and with the children’s natural family.
{¶ 20} A mental health clinical coordinator for Firelands Counseling and
Recovery testified the mother made little to no progress in her treatment, primarily from
missed appointments and a failure to follow treatment recommendations. The
coordinator was unable to testify to any length regarding the father’s assessment and
treatment because he did not consent to release of his records and she was never ordered
to bring his records.
{¶ 21} The specialized docket coordinator for the Ottawa County Juvenile Court,
testified the mother and father were terminated from participation in the court’s family
dependency specialized docket (H.O.P.E.) for noncompliance. During the program, the
mother was tested for drugs 38 times and had 4 no shows and 25 positive screens, and the
mother was able to produce a prescription for only some of the positive screens.
Furthermore, the coordinator was unable to resolve the discrepancy in the screenings
where the mother had a prescription for hydrocodone but was testing positive for opiates,
not oxycodone. In December 2018, the mother tested positive for illegal drugs and did
not have a prescription. She admitted to using a substance which had not been prescribed
to her. The coordinator testified the mother never advanced out of phase one of the
program because her behavior was mixed, sometimes positive and plugged in but in the
end she never actually complied. By the end, the mother was disconnected, showed no
emotion, and was no longer vested in the program. The father was also terminated
9.
because of his positive screens for marijuana use, and a failure to advance out of stage
one. He was always engaged, but did not believe he needed treatment.
{¶ 22} The CASA representative testified she visited A.R. just prior to the hearing
and found the mother was there. The mother said she was living in her car, which had a
missing window, and spent her days with A.R. or friends. The CASA representative
thought the mother seemed unusual that day. A.R. yelled to the mother and her friends
that they had better not be doing anything when the representative came inside. The
mother’s eyes were wide and glazed and dilated. The volunteer also found that A.R.
refused to comply with recommendations to move C.R.’s bed, ensure C.R. wore her
glasses, or to stop using inappropriate medication on B.R.’s gums for teething. He also
rejected a recommendation to limit the children’s electronic use. The representative also
questioned A.R. about his medical status, and he stated that his doctor indicated he has
high blood pressure issues for which he takes medication when he feels the need. At
visitations, the representative observed the mother and A.R. brought a lot of snacks, that
A.R. allowed B.R. to have candy even though he was a baby, and did not supervise J.T.
who wandered out of the room. However, the representative did observe that the parents
loved the children and wanted to interact with them. Because the parents still needed
stable housing, employment, negative drugs screens, and the father need to separate from
the mother to be successful, she opined reuniting the family would not be in the
children’s best interests. She recommended permanent custody of C.R. and B.R. be
awarded to the agency.
10.
{¶ 23} The father testified he completed the substance abuse program in prison
and has learned coping skills and anger management techniques regarding the use of
drugs. Since his last release, he admitted he is homeless with no expectation of finding a
place to live in the near future. The mother has received assistance for an apartment, but
they have been unable to find one. While he works two jobs, he testified he has very
limited funds after garnishment of his child support obligation. He believed he had
completed all the programs required and is a great father. However, he admitted to daily
use of marijuana, and believed there was nothing wrong with using illegal drugs and
raising kids.
{¶ 24} While the mother admitted to homelessness, she testified she was approved
for housing assistance and is waiting for approval of an apartment. She testified she
worked on case plan until the caseworker told the mother in December 2018, she would
not get her kids back. The mother believed her main issue was becoming drug free and
that if she had more time, she could finish the case plan. She testified she only had three
parenting classes to finish. The mother believed her father, A.R., would be good with all
the children.
{¶ 25} A.R.’s testimony from an April 12, 2018 hearing was stipulated into this
hearing. At that hearing, A.R. asserted his supervised visitations were limited by the
agency to once a month as a grandparent. He admitted to having been convicted of DUI
in 2000 and 2008 and to drinking alcohol off and on, but asserted he knows his limits.
He admitted he was unaware of any special needs of C.R. and B.R. At the permanent
11.
custody hearing, he also testified that he expected to rely upon his Social Security
income, food give-a-ways, food stamps, and assistance from churches and other support
groups to provide for the needs of the children. He denied ever having told the
caseworker about his medical issues. He also denied that B.R. was at risk during the
beach trip because A.R. was not far away and B.R. was asleep. He believed the
caseworker falsely accused him of abusing the baby to remove the kids, and she never let
them return to his home. He believed he was able to care for the children.
{¶ 26} On August 16, 2019, the trial court issued its decision denying A.R.’s
motion for legal custody and granting the motion of the OCDJFS for permanent custody
of the children. The court also found the agency made reasonable efforts to assist the
parents to achieve reunification of the family. Nonetheless, while the mother made some
progress on her case plan objectives, her progress slowed over time and she failed to
complete the plan by the time of the hearing because she did not resolve her drug
dependency and never obtained employment or housing. The court found that while the
father made some progress on his case plan objectives, he also did not successfully
complete the case plan, continues to use illegal drugs, remains homeless, and is unable to
provide for his children. Therefore, the court found, “by clear and convincing evidence
that the parents failed to continuously, repeatedly and substantially remedy the conditions
that initially caused the children to be placed outside the children’s home” and that the
rights of the parents should be terminated. The court also found the children “cannot be
12.
placed with either of their parents within a reasonable time and should not be placed with
them.”
{¶ 27} As to placement of the children with A.R., the court found that he is 68
years of age and his only source of income is Social Security. While he completed some
parenting classes, there were concerns about his ability to enforce the requirement that
C.B. wear eyeglasses and comply with agency recommendations. He also had recently
tested positive for THC and there are concerns the mother and father are living with A.R.
{¶ 28} Upon a review of the standards of R.C. 2151.414(D)(1), the court found by
clear and convincing evidence that granting permanent custody of C.R. and B.R. to the
agency was in the best interests of the children and that it was not in the best interests of
the children to have legal custody placed in the maternal grandfather, A.R.
Mother’s Appeal
{¶ 29} On appeal, the mother asserts that the trial court’s finding that the children
could not reasonably be reunified with her was against the manifest weight of the
evidence. Since only the mother filed a notice of appeal, we consider this assignment of
error as it relates to her interests.
{¶ 30} A motion for permanent custody was filed by the agency pursuant to R.C.
2151.413(A). R.C. 2151.414 governs the procedure and standards of the juvenile court
for ruling on the motion and gives the juvenile court the discretion to award the agency
permanent custody of the child upon making two factual findings. R.C. 2151.414(B)(1).
First, the juvenile court must find by clear and convincing evidence that “it is in the best
13.
interest of the child” to permanently terminate parental rights and “grant permanent
custody to the agency that filed the motion.” Id. When determining the best interest of
the child, the court shall consider all relevant factors, including those set forth in R.C.
2151.414(D)(1). Second, the juvenile court must also find by clear and convincing
evidence that one of the factors of R.C. 2151.414(B)(1) applies. In this case, the juvenile
court found:
[t]he child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, * * * and the child cannot be
placed with either of the child’s parents within a reasonable time or
should not be placed with the child’s parents. R.C. 2151.414(B)(1)(a)
(emphasis added).
{¶ 31} If the trial court finds that any one or more of the factors of R.C.
2151.414(E)(1)-(16) exist, the court must find the child cannot be placed with either
parent within a reasonable time or should not be placed with the parents. In this case, the
court found that the following subsections (1) and (16) existed:
(1) Following the placement of the child outside the child’s
home and notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parents to remedy the problems
that initially caused the child to be placed outside the home, the
14.
parent has failed continuously and repeatedly to substantially
remedy the conditions causing the child to be placed outside the
child’s home. In determining whether the parents have substantially
remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social
and rehabilitative services and material resources that were made
available to the parents for the purpose of changing parental conduct
to allow them to resume and maintain parental duties.
***
(16) Any other factor the court considers relevant.
{¶ 32} On appeal, we will not reverse a trial court’s decision in a permanent
custody case unless it is contrary to the manifest weight of the evidence. In re J.H., 6th
Dist. Lucas No. L-19-1295, 2020-Ohio-2658, ¶ 18; In re K.L., 6th Dist. Lucas No.
L-17-1201, L-17-1210, 2017-Ohio-9003, ¶ 24. A challenge to the weight of the evidence
questions whether the greater amount of credible evidence was admitted to support the
judgment than not. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 17-21 (applying State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541
(1997) to civil cases). A judgment “supported by competent, credible evidence going to
all essential elements of the case” is not contrary to the manifest weight of the evidence.
Karches v. City of Cincinnati, 38 Ohio St. 3d 12, 19, 526 N.E.2d 1350 (1988), citing C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978), syllabus.
15.
{¶ 33} In this case, the mother asserts that there was no clear and convincing
evidence to support the R.C. 2151.414(E) finding that the children could not be placed
with a parent within a reasonable time or should not be placed with either parent. She
contends the evidence establishes that the mother had only a short lapse in progress on
her case plan, she had done well in services, she consistently visited the children, and she
was willing to re-engage in services. Furthermore, she asserts the father completed most
of his case plan services and could have been reunited with the children within six
months. Finally, she argues there was no demonstration as to why this case could not
have been extended to 24 months so the parents could have completed their case plans.
She relies upon In re M.P., 9th Dist. Lorain No. 14CA010678, 2015-Ohio-2226, ¶ 45,
and R.C. 2151.419(A)(2).
{¶ 34} First, R.C. 2151.419(A) is not applicable to a disposition order rendered
under R.C. 2151.414(A). However, R.C. 2151.414(E)(1) does require that the juvenile
court find the agency made “reasonable case planning and diligent efforts * * * to assist
the parents.” Id. at ¶ 15.
{¶ 35} Under the current statutory provisions, there is no longer a requirement that
an agency must have had temporary custody for a minimum amount of time before it
could move for permanent custody. In re A.M., 4th Dist. Athens Nos. 17CA32, 17CA36,
2018-Ohio-646, 105 N.E.3d 389, ¶ 113, citing In re Brenna E., 124 Ohio App. 3d 143,
145, 705 N.E.2d 728 (6th Dist.1997) (other citations omitted). The only requirement is
that the agency provide the parents with “reasonable case planning and diligent efforts.”
16.
{¶ 36} Upon a review of the record, we find there was clear and convincing
evidence to support the juvenile court’s factual findings. Furthermore, the juvenile
court’s determination that the agency made reasonable efforts to assist the parents for
purposes of reunification with their children and that the children could not be placed
with a parent within a reasonable time or should not be placed with either parent were not
contrary to the manifest weight of the evidence.
{¶ 37} The children were removed on March 20, 2018, and case plan services
were provided from that time until the date of the disposition hearing in June and July
2019. While the parents were given over 12 months to complete their case plan services,
they failed to do so. It was clear by the time of the hearing that the parents would or
could not comply with the case plan requirements. There was no justification for the
agency to give the parents additional time to comply, especially in light of the fact that
C.R. and B.R. are very young children and need permanent placement. Furthermore, the
statutory provisions are designed to ensure that abuse, neglect, and/or dependency cases
are resolved within 24 months. R.C. 2151.353(G) and 2151.413(D)(1). This case had
already been pending approximately 16 months. The mother also could have raised her
concerns with the juvenile court at an earlier time so that any alleged impediments could
have been remedied immediately. In re K.J., 9th Dist. Summit No. 29149, 2019-Ohio-
123, ¶ 23.
{¶ 38} Therefore, we find the mother’s sole assignment of error not well-taken.
17.
Maternal Grandfather’s Appeal
{¶ 39} The maternal grandfather, A.R. asserts in his first “assignment of error”
that the trial court’s decision to deny his motion to intervene was contrary to the manifest
weight of the evidence. However, he actually argues in the body of his brief that the
decision to deny him legal custody was contrary to the manifest weight of the evidence.
We will address both issues.
{¶ 40} The trial court denied the motion to intervene on the basis that A.R. had not
established he has a legal right to custody or visitation with the children and therefore
does not meet the definition of “party” as set forth in Juv.R. 2(Y).
{¶ 41} Juv.R. 2(Y) defines a party as including “any other person specifically
designated by the court.” Therefore, the juvenile court has the discretion to designate
someone as a party to an abuse, neglect, and dependency case who is necessary to fully
resolve the issues before the court. In re A.B., M.B., J.B., A.P., 2018-Ohio-4206, 114
N.E.3d 421, ¶ 6 (6th Dist.) (citation omitted); In re Baker, 7th Dist. Harrison No. 98 507
CA, 1999 WL 783973, *3 (Sept. 28, 1999) (citations omitted).
{¶ 42} On appeal, we will not overturn the juvenile court’s decision absent a
showing that the court abused its discretion. Id. The party who sought to intervene in a
termination action may appeal the denial of the motion to intervene. State ex rel. N.G. v.
Cuyahoga Cty. Court of Common Pleas, 147 Ohio St. 3d 432, 2016-Ohio-1519, 67
N.E.3d 728, ¶ 28.
18.
{¶ 43} Appellant fails to argue how the juvenile court abused its discretion and we
do not find any abuse. It is not an abuse of discretion to deny a motion to intervene filed
by a grandparent who did not stand in loco parentis to the child. In re Schmidt, 25 Ohio
St.3d 331, 337, 496 N.E.2d 952 (1986); In re N.M., 2016-Ohio-7967, 74 N.E.3d 852, ¶ 14
(8th Dist.).
{¶ 44} Second, we address the issue of the trial court’s decision denying appellant
legal custody of C.R. and B.R. In determining the best interests of the children, the
juvenile court considered that: the children have some special needs and that A.R. had
not been enforcing the rule that C.R. wear her corrective glasses; the guardian ad litem
and CASA representative were concerned whether A.R. could set appropriate boundaries
for the children and follow agency recommendations; the mother appeared to be under
the influence while in A.R.’s home; C.R. and B.R. were currently living with a good
foster family who were willing to adopt them and maintain their biological family
relationships; and these children were in need of secure, permanent placement.
{¶ 45} Upon a review of the evidence, we find the trial court’s factual findings
were supported by clear and convincing evidence. Furthermore, we find the trial court
did not abuse its discretion in denying A.R.’s motion for legal custody.
{¶ 46} Therefore, we find A.R.’s first “assignment of error” is not well-taken.
{¶ 47} In his second “assignment of error,” A.R. argues we should review how the
ongoing caseworker and the agency conducted their duties in this case. He also asserted
that the ongoing caseworker abused her powers or duties as a caseworker.
19.
{¶ 48} We note that A.R. never raised this issue in the trial court where it could
have been resolved. See In re A.C., 8th Dist. Cuyahoga No. 108236, 2019-Ohio-4788,
¶ 46-48. Therefore, he has forfeited the right to raise the issue on appeal. State v.
Anderson, 151 Ohio St. 3d 212, 2017-Ohio-5656, 87 N.E.3d 1203, ¶ 44. Furthermore, an
appeal from the determination of the juvenile court’s disposition order would not be an
appropriate forum for adjudicating the issues A.R. asserts because not all of the facts he
alleges would be in the record on appeal.
{¶ 49} Therefore, we find A.R.’s second “assignment of error” not well-taken.
{¶ 50} Having found that the trial court did not commit error prejudicial to
appellants and that substantial justice has been done, the judgment of the Ottawa County
Court of Common Pleas, Juvenile Division, is affirmed. Pursuant to App.R. 24,
appellants are hereby ordered to split the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
20.
In re C.R.
C.A. Nos. OT-19-035
OT-19-037
OT-19-045
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
21. | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4534782/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BANK OF AMERICA, N.A., et al.,
Plaintiffs,
v. Case No. 1:20-cv-00318 (TNM)
GREGORY D. ROBINSON, SR., et al.,
Defendants.
MEMORANDUM ORDER
The Defendants, Gregory D. Robinson, Sr., and Mary Hooker Robinson, removed
to this Court two cases the Plaintiffs, Bank of America, N.A. and Uptown Development,
LLC, filed against them in the Superior Court of the District of Columbia. See ECF No.
1. The Robinsons, who are acting pro se, then filed three motions to prevent their
eviction from 1224 Emerson Street NW, Washington, DC 20011. See ECF Nos. 4–6.
The Plaintiffs filed separate responses in opposition to the Defendants’ motions. See ECF
Nos. 12, 14. And Bank of America moved to remand to Superior Court for untimely
removal and lack of subject matter jurisdiction. See Pl.’s Mot. to Remand, ECF No. 13-
1. In a previous Order, the Court denied as moot two of the Robinsons’ motions. See
Order (Feb. 14, 2020), ECF No. 17. Before the Court now are the Robinsons’ Motion for
Preliminary Injunction, ECF No. 5, and Bank of America’s Motion to Remand. Because
the Court lacks jurisdiction to hear the case, it will grant Bank of America’s motion and
deny as moot the Robinsons’ motion for an injunction.
1
I.
Bank of America filed a complaint for judicial foreclosure against the Robinsons
in D.C. Superior Court in November 2014. See D.C. Superior Court Case # 2014 CA
7399 R(RP). Two months later, Bank of America served the complaint on the
Robinsons. See Ex. A. (“Foreclosure Docket”), Pl.’s Mot. to Remand, ECF No. 13-2. In
March 2016, the Superior Court entered a consent judgment for foreclosure in favor of
Bank of America against Mr. Robinson Sr., and entered a default judgment against Ms.
Robinson. Id. at 7–8. 1
After that judgment, the Robinsons separately filed for bankruptcy, which stayed
the Superior Court case twice. Id. at 8–11; see Pl.’s Mot. to Remand at 1–2. The stay
eventually lifted and in October 2019 Uptown Development bought the property at
auction. Pl.’s Mot. to Remand at 2.
Shortly after buying the property, Uptown Development made two attempts to
serve a Notice to Vacate in-person. When those failed, Uptown Development posted a
Notice to Vacate on the property. Uptown Development filed a complaint against Ms.
Hooker Robinson for possession in the D.C. Superior Court Landlord and Tenant Branch.
See Docket, Uptown Dev. LLC v. Robinson, Case No. 2019 LTB 027120 (D.C. Super.
Ct.) (“Landlord-Tenant Docket”). And Uptown Development served Ms. Hooker
Robinson via posting and mailing on December 31, 2019. See id.
Ms. Hooker Robinson did not attend the initial hearing in the Landlord Tenant
action. Id. The Superior Court entered default and issued a non-redeemable judgment
1
All page citations refer to the Court’s CM/ECF pagination.
2
for possession. Id. The Superior Court then scheduled her eviction for February 19,
2020. Id.
That eviction and the Plaintiffs’ Renewed Motion to Ratify the sale in the
foreclosure action were both pending with the Superior Court when the Robinsons
removed both cases here on February 6, 2020.
II.
The Robinsons ground this Court’s jurisdiction in the federal question doctrine,
28 U.S.C. § 1331. Not. of Removal ¶ 1, ECF No. 1; Civil Cover Sheet, ECF No. 1-2.
They argue that the Court has federal question jurisdiction because Bank of America
cannot take its foreclosure action “outside the purview of the United States Department
of Veterans Affairs.” Not. of Removal at 2. Bank of America counters that the
Robinsons’ removal here was untimely and that this Court has no subject matter
jurisdiction. See generally Pl.’s Mot. to Remand.
Generally, a defendant in a state court civil action may remove the case to federal
district court if the district court has original jurisdiction over the matter. 28 U.S.C.
§ 1441(a). For removal, “‘State court’ includes the Superior Court for the District of
Columbia.” Id. § 1451(1).
But the state court defendant must file a notice of removal within 30 days after
receipt of the complaint. Id. § 1446(a)–(b)(1). And regardless of the timing, the D.C.
Circuit has made clear that “[w]hen it appears that a district court lacks subject matter
jurisdiction over a case that has been removed from a state court, the district court must
remand the case.” Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 196 (D.C.
Cir. 2002) (citing 28 U.S.C. § 1447(c)). “The party seeking removal of an action bears
3
the burden of proving that jurisdiction exists in federal court.” Reed v. AlliedBarton Sec.
Servs., 583 F. Supp. 2d 92, 93 (D.D.C. 2008).
Federal courts have original jurisdiction when a case presents a federal question
“arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
“To bring a case within the statute, a right or immunity created by the Constitution or
laws of the United States must be an element, and an essential one, of the plaintiff’s cause
of action.” Gully v. First Nat’l Bank, 299 U.S. 109, 112 (1936). The “controversy must
be disclosed upon the face of the complaint, unaided by the answer or by the petition for
removal.” Id. at 113. Removal based on federal question jurisdiction is improper if there
is no claim under federal law. 28 U.S.C. § 1441(c)(1)(A).
Federal courts also have original jurisdiction over civil matters when the matter in
controversy exceeds $75,000 and there is total diversity of citizenship between the
parties. 28 U.S.C. § 1332. A defendant may not remove a case based on diversity
jurisdiction if any defendant is a citizen of the state where the action is brought. 28
U.S.C. § 1441(b)(2).
III.
Remand is warranted here for two reasons.
First, the Robinsons’ removal was untimely. Section 1446(b)(1) requires that the
defendants file a notice of removal within 30 days of being served. But here the
Robinsons were served with both complaints more than 30 days before removal. In the
foreclosure action, Bank of America served the Robinsons with the complaint in January
2015, and they did not file for removal until February 2020—more than five years later.
4
In the landlord-tenant action, Ms. Hooker Robinson was served on December 31, 2019
and she filed for removal here more than 30 days later, on February 6, 2020.
The Robinsons claim they were never served with the complaint. See Not. of
Removal. But the Superior Court dockets show otherwise. Bank of America served the
Robinsons separately in January 2015. See Foreclosure Docket at 4. Giving the benefit
of all doubt to Ms. Hooker Robinson, the foreclosure docket shows an entry in September
2015 noting that she was served again to correct a previous error in service. See id. at 6.
But even starting the clock in September 2015, the removal filed here was more than four
years too late.
And Uptown Development served Ms. Hooker Robinson with the eviction lawsuit
by posting and mailing on December 31, 2019, after a process server twice tried to serve
her in person at the property. See Landlord-Tenant Docket. The Court agrees with Bank
of America that the Robinsons’ attempt to remove the cases is time-barred by 28 U.S.C.
§ 1446(b)(1). This alone justifies remand.
Second, even if the removal was timely, the Court lacks subject matter jurisdiction
over the case. Removal is appropriate only if a defendant can establish either federal
question jurisdiction or diversity jurisdiction. Caterpillar v. Williams, 482 U.S. 386, 392
(1987). The Robinsons claim the Court has federal question jurisdiction, but it does not.
The Robinsons argue that the case presents a federal question because of the
Department of Veterans Affairs’ interest in the case. Not. of Removal at pg. 2. It
appears from the Robinsons’ filings that they bought the home using a Veterans Affairs-
backed home loan. See Mot. for Preliminary Injunction, ECF No. 5. The foreclosure
docket also includes an entry referring to the Servicemembers’ Civil Relief Act, 50
5
U.S.C. §§ 3901–4043, though its significance is unclear. See Foreclosure Docket at 8.
Regardless, the Robinsons’ defense cannot support jurisdiction.
It is “settled law that a case may not be removed to federal court on the basis of a
federal defense[.]” Caterpillar, 482 U.S. at 393. And “[a] defense that raises a federal
question is inadequate to confer federal jurisdiction.” Merrell Dow Pharm. Inc. v.
Thompson, 478 U.S. 804, 808 (1986). But Bank of America’s only claim is under D.C.
Code § 42-816. See ECF No. 1-1 at 12. Likewise, Uptown Development’s eviction
claims rest in D.C. Code §§ 42-3203 and 42-522. Compl., Uptown Dev. LLC v.
Robinson, Case No. 2019 LTB 027120 (D.C. Super. Ct. Nov. 26, 2019). There is no
federal question.
And there is no diversity jurisdiction either. The removal statute expressly
prohibits removal based on diversity of citizenship if any defendant is a citizen of the
state where the action is brought. 28 U.S.C. § 1441(b)(2). But the Robinsons are citizens
of Washington, D.C., with a listed address at 1224 Emerson St NW. Because Bank of
America and Uptown Development brought their cases in the Superior Court for the
District of Columbia, the Court cannot exercise diversity jurisdiction.
Lacking original jurisdiction under either federal question or diversity of
citizenship, the Court lacks jurisdiction over this case and must remand. See Caterpillar,
482 U.S. at 392. And because the Court lacks jurisdiction over this case, there is no
authority to rule on the Robinsons’ Motion for Preliminary Injunction. “Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare
the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t,
6
523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).
IV.
In consideration of the parties’ filings, the records of the Superior Court, and the
relevant law, it is hereby
ORDERED that Bank of America’s Motion to Remand is GRANTED; and
ORDERED that this case shall be remanded to the Superior Court for the District
of Columbia; and further
ORDERED that the Robinsons’ Motion for Preliminary Injunction is DENIED as
moot.
SO ORDERED.
The Clerk of Court shall close this case.
2020.05.15
11:33:09 -04'00'
Dated: May 15, 2020 TREVOR N. McFADDEN
United States District Judge
7 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/6823528/ | Cup-shaped articles. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902825/ | Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 15, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fourth degree, criminally using drug paraphernalia in the second degree and reckless endangerment in the second degree, and sentencing him to an aggregate term of 1 to 3 years, unanimously affirmed.
The court properly denied defendant’s suppression motion. The police observed defendant’s car traveling more than 80 miles per hour and cutting off other cars. Accordingly, the police had probable cause to arrest defendant for, at least, second-degree reckless endangerment (see People v Gittens, 110 AD2d *445908 [2d Dept 1985]), which is a crime and not a traffic infraction. It was also reasonable under the circumstances for the police to impound the car and conduct an inventory search (see People v Walker, 20 NY3d 122 [2012]). This search was conducted pursuant to standardized guidelines that were introduced into evidence, and that were designed to safeguard defendant’s property, protect the police against claims of theft, and guard against dangerous instrumentalities (see People v Galak, 80 NY2d 715, 718-719 [1993]). Those guidelines require the police to check any area that may contain valuables. The officer testified that valuables might be stored in the spare tire compartment in the trunk of a car; accordingly, he did not exceed the permissible scope of the search in checking that compartment and seizing and vouchering the cocaine and other items found there. Furthermore, the property clerk’s invoices, even if not ideal, sufficed as a meaningful inventory list (see Walker, 20 NY3d 122).
Defendant’s challenges to sufficiency of the evidence and his related claims regarding the chemical analysis of the drugs are unpreserved and we decline to review in the interest of justice. As an alternative holding, we find these arguments to be without merit. We also find that 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. Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902826/ | Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 23, 2011, which granted defendants’ motion to dismiss the complaint as untimely and for failure to state a cause of action, unanimously affirmed, with costs.
The fraud and breach of contract claims alleging that plaintiffs former attorneys had misrepresented to the Bankruptcy Court that plaintiff was insolvent accrued no later than the December 26, 2001 entry of the bankruptcy decree. Accrual of the portion of the fraud claim alleging that payment of part of plaintiffs legal fees by a third party was concealed from him was not deferred by the discovery rule, since the documentary evidence, even without the affidavits submitted, clearly showed *446that plaintiff had been aware of such payment more than two years before he commenced this action. The continuous representation doctrine did not apply to the malpractice claim, as the legal services relied upon were unrelated to the specific legal matter as to which malpractice was alleged (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]), and was not pursuant to a retainer agreement in which the attorney and client anticipated continued representation (id. at 170).
Moreover, the fraud, breach of fiduciary duty and breach of contract causes of action all arose from the same facts as the malpractice claim and alleged similar damages, and were therefore properly dismissed as duplicative of the deficient malpractice claim (see e.g. Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669 [1st Dept 2012]; Bernard v Proskauer Rose, LLP, 87 AD3d 412, 416 [1st Dept 2011]).
We have considered plaintiffs remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902827/ | from an order of the Supreme Court (Mercure, J.), entered March 27, 1987 in Schenectady County, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action.
Order affirmed, without costs, upon the opinion of Justice Thomas E. Mercure. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902828/ | Mahoney, P. J.
Cross appeals from a judgment of the Supreme Court (Dier, J.), granting defendant a divorce and ordering equitable distribution of the parties’ marital property, entered June 1, 1987 in Washington County, upon a decision of the court, without a jury.
The parties were married on April 1, 1972 and resided in the Village of Cambridge, Washington County. They separated in March 1983 and this action for divorce was promptly commenced by plaintiff. Defendant counterclaimed for divorce. No reply to the counterclaim has been interposed. Supreme Court struck the complaint and granted a divorce to defendant on her counterclaim. Supreme Court also ordered the parties to submit statements of proposed disposition (22 NYCRR 202.16 [d]) and advised that equitable distribution and related issues would be decided upon submissions and other documents in the record. By separate order, Supreme Court made its equitable distribution award. A final judgment upon both orders was entered and the parties cross-appeal therefrom.
The parties’ contentions on this appeal are limited to the equitable distribution award. However, it appears from the record that no proof was taken regarding the parties’ claims for divorce. Nor is there any documentary proof regarding either claim for divorce. Indeed, regarding defendant’s successful counterclaim for divorce, issue had not been joined by service of a reply. A divorce may not be granted by consent or default in the absence of any oral or written proof to satisfy one of the statutory grounds for divorce (Domestic Relations Law § 211). Thus, the judgment must be reversed and the matter remitted to Supreme Court.
Judgment reversed, on the law, without costs, and matter remitted to Supreme Court for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902829/ | Kane, J. P.
Appeal *922from an order of the Supreme Court (Lynch, J.), entered May 5, 1987 in Schenectady County, which granted defendants’ motions to dismiss the complaint for want of prosecution.
On March 1, 1982, an accident occurred in which plaintiff was injured and her infant daughter was killed. Plaintiff and her daughter were passengers in an automobile operated by defendant Anthony T. Ferrara and owned by defendant Frances S. Ferrara when it collided with another automobile operated by defendant Byron J. Williams. As a result, on or about March 31, 1982, plaintiff commenced the instant action against defendants alleging negligence, wrongful death and conscious pain and suffering. Subsequently, on December 5, 1986, plaintiff’s attorney received a 90-day demand for the service and filing of a note of issue from Williams’ attorney. On March 5, 1987, the 90th day, plaintiff’s attorney served the note of issue by mailing it to the County Clerk and defendants’ attorneys. The County Clerk received and filed it on the following day, which was the 91st day. As a result of the late filing, Williams’ attorney moved pursuant to CPLR 3216 (e) for an order dismissing the complaint for failure to prosecute. The Ferraras also moved for identical relief. Supreme Court granted both motions and dismissed the complaint in its entirety. This appeal by plaintiff ensued.
In order to defeat a motion to dismiss for failure to prosecute under CPLR 3216, a plaintiff is required to demonstrate both a justifiable excuse for a late filing and a good and meritorious cause of action (Mihaly v Mahoney, 126 AD2d 791, 792; Aquilino v Adirondack Tr. Lines, 97 AD2d 929). Plaintiff advances several arguments in attempting to justify the failure to file the note of issue within the 90-day time frame, only one of which merits discussion. Specifically, plaintiff argues that the time prescriptions provided for in CPLR 2103 (b) (2) are applicable to the facts of this case. That statute states that "where a period of time prescribed by law is measured from the service of a paper [upon a party’s attorney] and service is by mail, five days shall be added to the prescribed period” (CPLR 2103 [b] [2]). However, as is evident from a reading of that statute, its only concern is with time limitations involving service. CPLR 3216 (b) (3) specifically requires a party upon whom a 90-day demand is made "to serve and file a note of issue” (emphasis supplied). As this court has previously determined, the mailing of a note of issue does not constitute a filing (Stein v Wainwright’s Travel Serv., 92 AD2d 961). Additionally, the fact that plaintiff’s attorney received the demand for the note of issue by mail did not serve to invoke *923the benefits of CPLR 2103. This is because CPLR 3216 (b) (3) specifically requires that the note of issue be served and filed "within ninety days after receipt of such demand” (emphasis supplied). Therefore, the provisions of CPLR 2103 (b) (2) clearly do not save plaintiff in the instant case.
Even were we to accept plaintiff’s excuse, dismissal would nevertheless be required due to plaintiff’s failure to demonstrate a meritorious cause of action. In opposing the motions to dismiss, plaintiff’s attorney simply submitted an affirmation setting forth the reasons for the late filing. No attempt was made to detail the merits of plaintiff’s claim or to provide any evidentiary facts in support thereof; dismissal on that basis was therefore warranted (see, Mihaly v Mahoney, supra; Aquilino v Adirondack Tr. Lines, supra). Additionally in rejecting plaintiff’s claim that Supreme Court improperly dismissed the complaint on its merits, we note that it was not necessary for the motion papers to request such a dismissal; the court was free to do so on its own initiative (see, CPLR 3216 [a]; Jones v Maphey, 50 NY2d 971).
Nevertheless, we do find error in Supreme Court’s dismissal of the complaint with respect to the Ferraras insofar as their motion to dismiss was not preceded by the service of a 90-day demand (see, Mihaly v Mahoney, supra, at 793). As a condition precedent to moving for dismissal under CPLR 3216, the party seeking such relief must have previously served the 90-day demand notice (CPLR 3216 [b] [3]; Jones v First Fed. Sav. & Loan Assn., 101 AD2d 1005, 1006; Fichera v City of New York, 79 AD2d 597, 598). The complaint should therefore not have been dismissed against the Ferraras.
We have considered plaintiff’s remaining contentions and find them lacking in merit.
Order modified, on the law, without costs, by reversing so much thereof as granted the motion by defendants Anthony T. Ferrara and Frances S. Ferrara; said motion denied; and, as so modified, affirmed. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902830/ | Harvey, J.
Appeal from that part of an order of the Supreme Court (Hughes, J.), entered August 11, 1987 in Albany County, which denied defendant Annmarie R. Miller’s motion for partial summary judgment and granted plaintiffs partial summary judgment dismissing an affirmative defense in said defendant’s amended answer.
*924In February 1981, plaintiff John J. McDonald was in a motor vehicle accident with two other vehicles, a car owned by defendant Bryan P. De Giorgio, which was driven by defendant Annmarie R Miller, and a bus owned by defendant Capital District Transportation Authority, which was driven by defendant Ellen S. Hogan. Following the accident, McDonald submitted medical bills to his insurance carrier. Payment was denied and arbitration ensued as to an unpaid balance of less than $500. While McDonald was awarded $166.74, the arbitration decision went on to state that no treatment was necessary after June 15, 1981 for injuries related to the accident.
McDonald and his wife commenced this action in August 1981. In September 1986, over five years after the commencement of the action, Capital District Transportation Authority and Miller moved to amend their answers to assert the affirmative defense of collateral estoppel. They sought dismissal of all of plaintiffs’ claims for damages arising after June 15, 1981 upon the ground that the no-fault arbitration decision collaterally estopped recovery for such damages. Supreme Court granted amendment of the answers. However, upon consideration of the merits of the collateral estoppel defense, Supreme Court concluded that the defense did not apply to the facts at hand. Only Miller has appealed.
Collateral estoppel can only be invoked where an identical issue was necessarily decided in a prior action and there was a full and fair opportunity to litigate the issue in the prior action (see, e.g., Kaufman v Lilly & Co., 65 NY2d 449, 455). Here, the arbitration involved a relatively insignificant sum of money. The arbitration was not decided by an individual trained as a lawyer. McDonald was discouraged from personally attending the proceeding or having his attorney or physician appear. Indeed, appearance by his attorney and/or physician would have been economically infeasible. Hence, the arbitrator’s decision was based solely upon submitted medical reports. Further, it is interesting to note that while the arbitrator felt that no treatment was necessary after June 15, 1981, an Administrative Law Judge with the Federal Department of Health and Human Services rendered a decision on April 29, 1982 in which he concluded that McDonald was and continued to be disabled, and faced future surgery due to injuries suffered in the February 1981 accident. In light of the above, we find Miller’s contention that the arbitration decision should collaterally estop plaintiffs from seeking recovery in *925the current action for damages arising after June 15, 1981 to be totally without merit.
Miller’s contention that plaintiffs’ papers were insufficient to defeat the motion for summary judgment is also meritless.
Order affirmed, with costs. Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902831/ | Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 23, 2011, which granted defendants’ motion to dismiss the complaint as untimely and for failure to state a cause of action, unanimously affirmed, with costs.
The fraud and breach of contract claims alleging that plaintiffs former attorneys had misrepresented to the Bankruptcy Court that plaintiff was insolvent accrued no later than the December 26, 2001 entry of the bankruptcy decree. Accrual of the portion of the fraud claim alleging that payment of part of plaintiffs legal fees by a third party was concealed from him was not deferred by the discovery rule, since the documentary evidence, even without the affidavits submitted, clearly showed *446that plaintiff had been aware of such payment more than two years before he commenced this action. The continuous representation doctrine did not apply to the malpractice claim, as the legal services relied upon were unrelated to the specific legal matter as to which malpractice was alleged (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]), and was not pursuant to a retainer agreement in which the attorney and client anticipated continued representation (id. at 170).
Moreover, the fraud, breach of fiduciary duty and breach of contract causes of action all arose from the same facts as the malpractice claim and alleged similar damages, and were therefore properly dismissed as duplicative of the deficient malpractice claim (see e.g. Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669 [1st Dept 2012]; Bernard v Proskauer Rose, LLP, 87 AD3d 412, 416 [1st Dept 2011]).
We have considered plaintiffs remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902832/ | Mercure, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which partially sustained sales and use tax assessments imposed under Tax Law articles 28 and 29.
The ultimate inquiry herein is whether petitioner is liable for sales and use taxes on its purchases of machinery and equipment used in connection with the furnishing of cable television services and on its payments to subcontractors who installed cable and equipment within the streets of New York City, for the period January 1, 1974 to February 28, 1979. Respondent answered the question in the affirmative. We agree.
Our determination turns on resolution of two issues: (1) whether cable television service constitutes telephony, telegraphy or telephone or telegraph services within the purview of Tax Law articles 28 and 29, and (2) whether the determination of respondent that the cable and equipment installed within the streets of New York City constitute personal property is supported by substantial evidence.
Tax Law § 1105 (b) provides for the imposition of sales tax upon the receipts from every sale, other than sales for resale, of telephone and telegraph service. Tax Law § 1115 (a) (12) exempts from sales and use taxation receipts from the sale of machinery or equipment utilized in the sending or receiving of telephone or telegraph signals or services. From the enactment of Tax Law article 28 in 1965 to early 1976, it was the position of the Commissioner of Taxation and Finance that cable television service was not telephony, telegraphy or telephone or telegraph service within the purview of Tax Law § 1105 and that the service, accordingly, was not subject to sales taxation. However, this position was reversed by an opinion of counsel rendered April 6, 1976, effective June 1, 1976. Thereafter, respondent codified tax regulations 20 NYCRR 257.2 (d) (2), which provided for the sales taxation of cable television service as telephony or telegraphy pursuant to *926Tax Law §1105 (b), and 20 NYCRR 528.13 (f) (2), which provided for a sales tax exemption on the purchase of cable television equipment pursuant to Tax Law § 1115 (a) (12).
The validity of the April 6, 1976 opinion of counsel and 20 NYCRR 527.2 (d) (2) were successfully challenged in New York State Cable Tel. Assn. v Tax Commn. (88 Misc 2d 601). On appeal, this court affirmed, holding that "it cannot be said that cable television companies are engaged in the sale of telephone or telegraph services” (New York State Cable Tel. Assn. v State Tax Commn., 59 AD2d 81, 84). On September 15, 1980, the Department of Taxation and Finance brought its regulations into conformity with this court’s determination by amending 20 NYCRR 527.2 (d) (2) and 528.13 (f) (2) and codifying 20 NYCRR 527.2 (d) (3) and 528.13 (f) (5).
It is petitioner’s contention that the Department, by the September 15, 1980 amendment to 20 NYCRR 528.13 (f), eliminated the sales tax exemption on purchases of cable television machinery and equipment retroactively and, therefore, impermissibly. We disagree. As quite properly argued by the Department, the Commissioner’s regulations never did create an exemption, as an administrative agency cannot authorize a tax exemption; only the Legislature by statute can do that (see, Matter of Koner v Procaccino, 39 NY2d 258, 264). The determination of this court in New York State Cable Tel. Assn. v State Tax Commn. (59 AD2d 81, supra), that cable television is not telephony, telegraphy or telephone or telegraph service, is dispositive of the issue of the application of the exemption contained in Tax Law § 1115 (a) (12) to cable television equipment. Since cable television equipment is not telephone or telegraph equipment, the exemption does not and never did apply, notwithstanding the Commissioner’s incorrect determination and regulation to the contrary. Petitioner’s alleged reliance upon the incorrect regulations is also irrelevant since estoppel does not apply to the State acting in its governmental capacity (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 93-94; Matter of Wolfstich v New York State Tax Commn., 106 AD2d 745, 748), particularly in matters involving the collection of taxes (see, Matter of McMahan v State Tax Commn., 45 AD2d 624, 627, lv denied 36 NY2d 646). Moreover, petitioner’s acknowledgement that it would be bound by this court’s determination in New York State Cable Tel. Assn. v State Tax Commn. (supra) negates any legitimate claim of detrimental reliance.
Next, we reject petitioner’s contention that the cable buried under the streets of New York City constitutes a capital *927improvement as defined in Tax Law § 1101 (b) (9) and is thus excluded from sales tax pursuant to Tax Law § 1105 (c) (5). Here, the contract between petitioner and the city provided that at the expiration of a 20-year franchise, petitioner was required to either let the city buy the system or to remove the system from the ground to the satisfaction of the Commissioner of Highways. In Matter of Merit Oil v New York State Tax Commn. (124 AD2d 326), we found that "[wjhere petitioner reserves the right to remove the installed property, a finding of permanency is unlikely” (supra, at 328). In fact, the instant case offers even stronger evidence of intention that the improvement be other than permanent, since petitioner has actually obligated itself to remove the improvement upon demand, a factor not present in Merit Oil. Substantial evidence supports respondent’s determination that the improvements installed by petitioner were subject to sales tax.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902835/ | Casey, J.
Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered September 10, 1984, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.
On his prior appeal to this court (117 AD2d 874), defendant’s judgment of conviction was affirmed. The Court of Appeals modified the judgment rendered by this court and ordered the case remitted to County Court for a determination of certain factual findings concerning the handcuffing of defendant (69 NY2d 863). The Court of Appeals stated: "In the event the suppression court finds that defendant was handcuffed before, or at the same time as, he made his initial statement, then in the circumstances presented [defendant’s] suppression motion should be granted, defendant’s plea va*929cated, and the indictment dismissed. In the event the suppression court finds that defendant made his initial statement before handcuffing, the judgment should be amended to reflect that determination” (supra, at 865).
At the remand hearing, the arresting officer could not recall whether the handcuffs were placed on defendant before or after his incriminating statements; defendant did not take the stand to testify in regard thereto. County Court decided that the colloquy between defendant and the police officer, together with the pat down that the police officer conducted, demonstrated beyond a reasonable doubt that the incriminating statements by defendant preceded his handcuffing, so that there was no necessity for the administration of Miranda warnings prior to the detective’s question that precipitated defendant’s incriminating statements. We agree with the determination of County Court and, therefore, pursuant to the Court of Appeals directive, the judgment of conviction must be amended.
Judgment amended to reflect that defendant made his initial statement before being handcuffed, and, as so amended, affirmed. Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534797/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1736
MARIAM, INC.; JOHN DARVISH, SR.; JOHN DARVISH, JR.; JAMSHYD
DARVISH,
Plaintiffs - Appellees,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a subsidiary of
Zurich American Insurance Company,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge. (8:17-cv-03021-PJM)
Submitted: April 29, 2020 Decided: May 15, 2020
Before GREGORY, Chief Judge, and AGEE and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert P. O’Brien, Bryant S. Green, NILES, BARTON & WILMER, LLP, Baltimore,
Maryland, for Appellant. Benjamin L. Bailey, Brian A. Glasser, Rebecca Pomeroy,
BAILEY & GLASSER, LLP, Charleston, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this insurance action arising out of a family employment dispute, Tamara Darvish
Fallahi sued her father, his company, and her two half-brothers (collectively, “Appellees”),
asserting, among other claims, tortious interference with economic relationships and
tortious interference with contract. To defend the action, Appellees sought to invoke their
insurance policy, issued by Universal Underwriters Insurance Company (“Universal”),
which provided coverage for allegations of wrongful employment practices. Universal
denied Appellees’ claim, however, citing a provision that excluded coverage for actions
taken with the intent to cause harm. 1
Appellees then commenced this action against Universal, alleging that Universal
breached its duty to defend. On the issue of liability, the district court granted summary
judgment to Appellees on their duty-to-defend claim, and a jury thereafter awarded
substantial damages to Appellees. Universal appealed, challenging the district court’s
determination that the exclusion did not apply. For the reasons that follow, we affirm.
“We review de novo a district court’s grant or denial of a motion for summary
judgment, construing all facts and reasonable inferences therefrom in favor of the
nonmoving party.” Gen. Ins. Co. of Am. v. U.S. Fire Ins. Co., 886 F.3d 346, 353 (4th Cir.
2018). Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
1
To prevail on her tort claims, Fallahi had to show intentional, malicious acts that
were calculated to cause harm. Blondell v. Littlepage, 991 A.2d 80, 97 (Md. 2010).
2
Under Maryland law, which governs here, “[t]o ascertain whether an insurer has a
duty to defend its insured” against a tort action, courts “engage in a two-part inquiry,”
asking “(1) what is the coverage and what are the defenses under the terms and
requirements of the insurance policy,” and “(2) do the allegations in the tort action
potentially bring the tort claim within the policy’s coverage.” Md. Cas. Co. v. Blackstone
Int’l Ltd., 114 A.3d 676, 682 (Md. 2015) (internal quotation marks omitted).
With respect to the first question, the parties’ primary dispute concerns the
applicability of the policy exclusion for actions taken with the intent to cause harm. The
full text of the exclusion reads as follows: “any act committed by or at the direction of the
INSURED with intent to cause harm. This exclusion does not apply if INJURY arises
solely from the intentional use of reasonable force for the purpose of protecting persons or
property.” (J.A. 2 59). Universal insists that “harm” means any harm whatsoever, while
Appellees maintain that, read in context, “harm” could refer only to physical harms.
We agree with Appellees’ assertion that the exclusion is ambiguous because it could
“suggest[] more than one meaning to a reasonably prudent layperson.” State Farm Mut.
Auto. Ins. Co. v. DeHaan, 900 A.2d 208, 226 (Md. 2006). Although, as Universal
contends, “harm” might generally refer to any loss or detriment, we conclude that, when
considered in conjunction with the exception for acts of force committed in defense of
persons or property, “harm” could reasonably be interpreted as referring only to harms of
a physical nature. See id. (“A term which is clear in one context may be ambiguous in
2
“J.A.” refers to the joint appendix filed by the parties in this appeal.
3
another.”). In light of this ambiguity, we construe the exclusion against Universal as drafter
of the policy, Md. Cas. Co., 114 A.3d at 682, which leads us to adopt the narrower
formulation of the exclusion—i.e., physical harms only.
Turning to the second question, there is no doubt that the exclusion, narrowly
construed, did not apply to the economic torts at issue in the Fallahi action. Thus, we
conclude that the exclusion did not justify Universal’s decision to refuse Appellees’ request
to defend the underlying suit. 3
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 this court and argument would not aid the decisional process.
AFFIRMED
3
Although our path to this conclusion differs from the one taken by the district
court, “we are entitled to affirm on any grounds supported by the record.” Attkisson v.
Holder, 925 F.3d 606, 624 (4th Cir. 2019) (internal quotation marks omitted).
4 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902839/ | *448Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 23, 2012, which, in this action for personal injuries under the Dram Shop Act (General Obligations Law § 11-101) and in common-law negligence, denied the motion of defendants-appellants (collectively tavern) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Summary judgment was properly denied in this action where plaintiff alleged that he was injured when he was struck in the face by a visibly intoxicated patron of the Tavern on the sidewalk outside the premises. The record presents triable issues as to whether there was “some reasonable or practical connection” between the sale of alcohol to a visibly intoxicated patron and the resulting injuries (Adamy v Ziriakus, 231 AD2d 80, 88 [4th Dept 1997], affd 92 NY2d 396 [1998]). Although the tavern’s bartender stated that the subject patron did not appear to be visibly intoxicated, plaintiff testified to the contrary, and two other witnesses submitted affidavits stating that prior to the assault the patron had been served alcohol by the tavern while visibly intoxicated inasmuch as he was unsteady, aggressive and boisterous (see General Obligations Law § 11-101 [1]; Alcoholic Beverage Control Law § 65 [2]; McGovern v 4299 Katonah, 5 AD3d 239 [1st Dept 2004]). The record also raises issues as to whether appropriate security measures were taken after the tavern’s bartender allegedly diffused an initial confrontation between the patron and plaintiffs group while inside the bar (see Wilder v Nickbert Inc., 254 AD2d 819 [4th Dept 1998]; see also Panzera v Johnny’s II, 253 AD2d 864 [2d Dept 1998]).
Contrary to the tavern’s contention, the assault, if intentional, did not serve to sever potential liability under either the Dram Shop Act (see Catania v 124 In-To-Go, Corp., 287 AD2d 476 [2d Dept 2001], lv dismissed 97 NY2d 699 [2002]), or under a common-law negligence claim (see Wilder, 254 AD2d at 819; Panzera, 253 AD2d at 865). Furthermore, the fact that plaintiff, after the initial confrontation, later chose to walk over to where the patron and members of plaintiffs party were arguing outside the tavern’s front door, did not negate, as a matter of law, the duty on the Tavern’s part to keep the premises reasonably safe for its customers. Concur—Mazzarelli, J.E, Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902843/ | Weiss, J.
Appeal from a judgment of the Supreme Court (Plumadore, J.), entered May 19, 1987 in Clinton County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition as improperly verified.
Petitioner, an inmate at Clinton Correctional Facility, commenced this proceeding by order to show cause dated April 27, 1987, apparently to review various disciplinary determinations rendered in March 1987. Respondents immediately returned the pro se petition for lack of an appropriate verification pursuant to CPLR 3022. Thereafter, Supreme Court granted respondents’ motion to dismiss the petition as improperly verified. This appeal by petitioner ensued.
We affirm. A petition in a CPLR article 78 proceeding must be verified (CPLR 7804 [d]). Where defective in this regard, the petition may be treated by the opposing party as a nullity (CPLR 3022). Having returned the petition within one day, respondents clearly met the due diligence aspect of CPLR 3022 (cf., Matter of O'Neil v Kasler, 53 AD2d 310, 315). Our focus is on the verification presented. The petition was not sworn to before a notary public, but before a fellow inmate, ostensibly in accord with the procedure sanctioned in United States ex rel. Echevarria v Silberglitt (441 F2d 225, 227). As Supreme Court observed, however, petitioner’s reliance on *938United States ex rel. Echevarria v Silberglitt (supra) is misplaced because the services of a notary public are available at Clinton Correctional Facility. The record includes various other decisions in proceedings initiated by petitioner in which Supreme Court in Clinton County took judicial notice that notary services are available. Petitioner, a frequent litigator, was clearly privy to this information and yet failed to present a viable reason for using an inmate witness. While pro se petitions are accorded a liberal construction (see, Hughes v Rowe, 449 US 5, 9), and pleading defects may be ignored (CPLR 3026; see, State of New York v McMahon, 78 Misc 2d 388), under the circumstances presented, Supreme Court could readily dismiss the petition pursuant to CPLR 3022 (cf., Sackinger v Nevins, 114 Misc 2d 454, 458). This is particularly pertinent in view of the patently ambiguous nature of the pleadings.
Judgment affirmed, without costs. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902844/ | *448Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 23, 2012, which, in this action for personal injuries under the Dram Shop Act (General Obligations Law § 11-101) and in common-law negligence, denied the motion of defendants-appellants (collectively tavern) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Summary judgment was properly denied in this action where plaintiff alleged that he was injured when he was struck in the face by a visibly intoxicated patron of the Tavern on the sidewalk outside the premises. The record presents triable issues as to whether there was “some reasonable or practical connection” between the sale of alcohol to a visibly intoxicated patron and the resulting injuries (Adamy v Ziriakus, 231 AD2d 80, 88 [4th Dept 1997], affd 92 NY2d 396 [1998]). Although the tavern’s bartender stated that the subject patron did not appear to be visibly intoxicated, plaintiff testified to the contrary, and two other witnesses submitted affidavits stating that prior to the assault the patron had been served alcohol by the tavern while visibly intoxicated inasmuch as he was unsteady, aggressive and boisterous (see General Obligations Law § 11-101 [1]; Alcoholic Beverage Control Law § 65 [2]; McGovern v 4299 Katonah, 5 AD3d 239 [1st Dept 2004]). The record also raises issues as to whether appropriate security measures were taken after the tavern’s bartender allegedly diffused an initial confrontation between the patron and plaintiffs group while inside the bar (see Wilder v Nickbert Inc., 254 AD2d 819 [4th Dept 1998]; see also Panzera v Johnny’s II, 253 AD2d 864 [2d Dept 1998]).
Contrary to the tavern’s contention, the assault, if intentional, did not serve to sever potential liability under either the Dram Shop Act (see Catania v 124 In-To-Go, Corp., 287 AD2d 476 [2d Dept 2001], lv dismissed 97 NY2d 699 [2002]), or under a common-law negligence claim (see Wilder, 254 AD2d at 819; Panzera, 253 AD2d at 865). Furthermore, the fact that plaintiff, after the initial confrontation, later chose to walk over to where the patron and members of plaintiffs party were arguing outside the tavern’s front door, did not negate, as a matter of law, the duty on the Tavern’s part to keep the premises reasonably safe for its customers. Concur—Mazzarelli, J.E, Acosta, Saxe, Renwick and Clark, JJ. | 01-03-2023 | 01-13-2022 |
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