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https://www.courtlistener.com/api/rest/v3/opinions/5902851/ | *449Order and judgment (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered October 27, 2011, which denied petitioners’ motion to vacate an arbitration award and granted respondents’ cross motion to confirm, unanimously affirmed, without costs.
The penalty imposed by an arbitrator should be affirmed, unless it shocks the conscience (Matter of Waldren v Town of Islip, 6 NY3d 735 [2005]). Here, the imposition of a one year suspension, rather than termination, where the employee accessed the personnel files of two coworkers does not “shock the conscience.” While it is true that an award can be overturned where it is directly contrary to a settled public policy (see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 80 [2003]), imposing a one year suspension, rather than termination, does not violate the policy of protecting confidential information. Nor does the imposition of a penalty short of termination render the award irrational, because there is a possibility that the employee will reoffend, especially where there has been no criminal conviction and there is a clear, substantial penalty imposed to deter such future conduct (cf. Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept, of Juvenile Justice, 82 AD3d 644, 645 [1st Dept 2011]). Finally, the employee’s lack of remorse, while relevant to the risk of recidivism, does not here rise to the level in the cases relied upon by the City (see Matter of Binghamton City School Dist. [Peacock], 46 AD3d 1042, 1044 [3d Dept 2007] [school teacher’s lack of remorse or understanding of moral aspect of inappropriate relationship with teen student required termination until counseling or other remedial steps taken]). Concur—Mazzarelli, J.P., Acosta, Saxe, Renwick and Clark, JJ. [Prior Case History: 2011 NY Slip Op 32865(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2437028/ | 678 S.W.2d 115 (1984)
BUILDERS SAND, INC., Appellant,
v.
Mario TURTUR, Appellee.
No. C14-83-261CV.
Court of Appeals of Texas, Houston (14th Dist.).
June 7, 1984.
*117 Alan R. Lazor, Richie & Greenberg, Houston, for appellant.
Bernard Wm. Fischman, Lackshin & Nathan, Houston, for appellee.
Before JUNELL, MURPHY and SEARS, JJ.
OPINION
JUNELL, Justice.
This is an appeal from a judgment that Builders Sand, Inc. take nothing in its suit to compel Mario Turtur, as seller, to specifically perform under the terms of an earnest money contract for the sale of realty. We affirm.
Builders Sand, Inc., Appellant, filed suit to compel Mario Turtur, Appellee, to convey real property in Galveston County. Appellant was to acquire the Galveston County lot and then exchange that lot with Peyton Waters, Sr. for a commercial lot owned by Waters in Harris County. Waters was to provide part of the purchase price of the Galveston County lot. This two-phased transaction was structured in order to minimize the tax consequences to Waters upon his selling of the Harris County lot.
An earnest money contract for the sale of Appellee's Galveston County lot was prepared by Ward A. Busey. Busey is an attorney and officer of Appellant. The contract consisted of a printed form with blanks filled in by Busey. At the insistence of Appellee, Busey had the clause "closing will be within seven (7) days of this contract" typed into the contract. The contract was signed by Busey for the Appellant and on May 14, 1982 by Appellee. Busey picked up the contract from Appellee's office on May 14th.
Busey testified that he took the signed earnest money contract and $1,000 earnest money check to the title company on the same date the contract was signed. On the following Tuesday, May 18th, Appellee called the title company to see if the contract and earnest money had been placed with the title company. An employee of the title company told Appellee that they had no record of receiving any such contract and earnest money. Appellee then called Waters to find out if Waters still wanted the Galveston County property. After he told Appellee that he was still interested, Waters called Appellant to find out the status of the transaction. Waters talked to either Busey or Larry Martin, Appellant's President, who told Waters that everything was being taken care of. The records of the title company show the earnest money and contract were received May 19th.
The title company notified Busey on May 20th that it would not be able to issue a title policy on the Galveston County property by May 21st. Busey called that same day to inform Appellee that the title policy would not be ready the next day and that there could be no closing. Busey testified that Appellee said that the delay in closing was no problem, that Appellee said he was going to be out of town anyway, and that the closing could be delayed until later. Appellee testified that he did not agree to any such extension and told Busey that if there was no closing on May 21st, the deal was off.
No closing took place at the title company on the 21st. However, Busey on that day delivered to the title company two personal checks as the purchase price for the *118 Turtur lot, one check from Appellant and one from Waters. Late in the afternoon of the same day, Busey hand delivered a letter to Appellee's office. The letter stated that it was reconfirming the earlier oral agreement to extend the time of closing until May 24th. When Appellee returned to his office on the 24th, he read the letter from Busey and sent a reply to both Busey and the title company. Appellee's reply letter states that there was no agreement to extend the time of the closing.
Even though, according to Busey's testimony, there was an agreement to extend the time for closing, Busey prepared and had recorded on May 24th in the Galveston County records an affidavit and lis pendens notice. On May 25, Busey and the title company each received their copies of Appellee's letter denying that an agreement to extend the time for closing had been reached.
Appellant then brought suit seeking specific enforcement of the earnest money contract. After a non-jury trial, judgment was entered that Appellant take nothing and that the affidavit and lis pendens notice recorded in the real property records of Galveston County were declared void and of no force. The trial court made Findings of Fact and Conclusions of Law. Appellant's Request for Additional and Amended Findings of Fact and Conclusions of Law was refused by the trial judge.
Appellant raises fifteen points of error in its appeal from the judgment of the trial court. Appellant's tenth point of error is that the trial court erred in concluding as a matter of law that "time is of the essence of an earnest money contract for the sale of real property where the contract provides that the transaction shall close on a specific date." Appellant's thirteenth point of error is that the trial court erred by concluding as a matter of law that Builders Sand committed an anticipatory breach of the earnest money contract between the parties. Appellant argues that time was not of the essence of this contract and that it committed no breach, either actual or anticipatory, of the contract by failing to have the closing on May 21st.
In an ordinary contract for the sale of land, where the sale is to be consummated on a future day, time is not of the essence unless such an intention is clearly manifested. Helsley v. Anderson, 519 S.W.2d 130, 132 (Tex.Civ.App.Dallas 1975, no writ). The contract in Helsley contained a handwritten clause "closing to be on July 1, 1971." However, that phrase alone was not enough to make time of the essence. The court in Helsley, after looking at the record and evaluating the attendant circumstances which evidenced the parties' intent, could not agree with the trial court's conclusion that time was of the essence. However, after looking at the same factors in this case, we find that the trial court did not err in concluding that time was of the essence.
The contract between Appellant and Appellee expressly provided that "closing will be within seven (7) days of this contract." This clause was typed into the printed form and to the extent of any conflict the typed portion controls over the printed part. However, the mere designation of a particular date for performance does not per se make time of the essence. Laredo Hides Co. v. H & H Meat Products Co., 513 S.W.2d 210 (Tex.Civ.App.Corpus Christi 1974, writ ref'd n.r.e.). The designation of a particular date for performance is some indication that time is of the essence. When the intention to make time of the essence is not made clear by the language in the contract itself, the surrounding circumstances may be taken into consideration to make the determination. Laredo Hides, 513 S.W.2d at 217. Appellee testified as to the reason the closing had to be within seven days of the contract. Busey included the typewritten clause into the contract at the insistence of Appellee. Waters testified that Appellee did not disclose the urgency of closing the deal quickly. Waters only believed that Appellee wanted a contract to be signed quickly. Appellee testified that he told Waters several times that it was important that the transaction *119 be closed promptly and that Waters would have to perform quickly in order to get the price Appellee was offering to Waters. Appellee also testified that he "told Mr. Busey it's imperative that we close this deal before I leave for Hawaii, and I told him that we had to close it by the 21st of May because the last week in May I had many things I had to do before I left on our vacation."
Based upon the typewritten clause in the contract itself and the testimony in the record, the trial court had sufficient evidence to conclude that time was of the essence in this transaction. However, the trial court concluded that "Time is of the essence in an earnest money contract for the sale of real property where the contract provides that the transaction shall close on a specific and certain date." While the trial court should have based its conclusion on both the typewritten clause and the testimony in the record, this does not mean that the judgment of the trial court must be reversed. When a trial court renders an otherwise correct judgment, that judgment will not be set aside because of an incorrect conclusion of law. Wirth, Ltd. v. Panhandle Pipe and Steel, Inc., 580 S.W.2d 58 (Tex.Civ.App. Tyler 1979, no writ); City of Corpus Christi v. Davis, 575 S.W.2d 46 (Tex.Civ. App.Corpus Christi 1978, no writ); Mercedes Dusting Service, Inc. v. Evans, 353 S.W.2d 894 (Tex.Civ.App.San Antonio 1962, no writ). Appellant's tenth point of error is overruled. The question that remains is whether Appellant committed an anticipatory breach of the contract when Busey phoned and told Appellee that there could be no closing on May 21.
Appellant argues that the reason Busey called on May 20th was to inform Appellee that the title company was unable to deliver a title commitment by May 21st. Appellant asserts that under the contract the seller, not the purchaser, had the obligation to obtain a title policy. From this Appellant concludes that even if time was of the essence, the failure to obtain the title policy was Appellee's fault and did not indicate Appellant's refusal to perform the agreement.
The trial court found that "Mr. Busey assumed the responsibility for dealings with the title company and Defendant had no dealings with the title company...." The earnest money contract does provide that "Seller shall furnish a Policy of Title Insurance...." Appellee testified that Busey assumed the responsibilities for dealing with the title company. In its brief, Appellant does not challenge the factual sufficiency to support the court's finding that Busey had assumed the responsibility for dealing with the title company. Although Appellee, under the contract, initially had the duty to obtain the policy, Appellant's agent Busey assumed the obligation, and any failure to meet the obligation would be attributable to Appellant.
The evidence is uncontroverted that Busey informed Appellee on May 20th that the closing could not take place the next day due to a lack of a title insurance policy. Busey and Appellee differ as to what else was said. Appellee testified that he said that if Appellant could not close the next day the deal was off. Busey testified that Appellee was not opposed to closing later and that Appellee told him that he was going to be out of town on the 21st anyway. Busey testified that he and Appellee reached an agreement whereby the closing was put off until May 24th. Despite such an agreement, Busey took two checks, representing the purchase price of the Galveston County property, to the title company on May 21st. Appellant argues that it was ready, willing and able to perform and did tender performance on May 21st even though Busey testified that the parties agreed to postpone the date for closing.
The trial court, as trier of fact, was the judge of the credibility of the witnesses. In light of the record, the trial court was justified in believing Turtur's version of the May 20th phone conversation. The trial court concluded "A purchaser under an earnest money contract commits an anticipatory breach thereof when it informs the other party that it cannot comply with *120 the closing dates specifically stated in the earnest money contract, and the seller relies on and accepts such repudiation." Appellee testified that Busey said "that the closings would not take place on Friday because the title company was not ready...." Appellee responded by saying "then we don't have a deal...."
An anticipatory repudiation of a contract may consist of either words or actions by a party to a contract that indicate an intention that he or she is not going to perform the contract according to its terms in the future. Baytown State Bank v. Don McMillian Leasing Company, 551 S.W.2d 771 (Tex.Civ.App.Houston [14th Dist.] 1977, writ ref'd n.r.e). The evidence shows a definite manifestation of intention not to perform by the date selected for closing, even though time was of the essence. As stated above, Busey assumed the duty of obtaining the title policy from the title company. Appellant cannot now justify its refusal to perform by saying that Appellee had that duty. The trial court was justified in finding that the statement by Busey to Appellee was a sufficient expression of intention not to comply with the contract. Appellee was justified in accepting the anticipatory breach or repudiation as final, and Appellee was relieved of any further obligations under the contract. See generally Miller v. Puritan Fashions Corporation, 516 S.W.2d 234, 237 (Tex.Civ. App.Waco 1974, writ ref'd n.r.e.). For the above reasons, Appellant's thirteenth point of error is overruled.
Assuming for the sake of argument that Busey's phone conversation with Appellee was not sufficient to constitute a repudiation of the contract, there is an additional reason why Appellant is not entitled to the equitable remedy of specific performance.
As a general proposition, a purchaser seeking to compel specific performance of a contract to sell realty need only plead and prove that it is ready, willing and able to pay the agreed consideration and perform the essence of the agreement and offer to do so. Cowman v. Allen Monuments, Inc., 500 S.W.2d 223, 227 (Tex.Civ. App.Texarkana 1973, no writ). By three points of error, Appellant attacks the trial court's failure to make certain findings regarding whether Builders Sand was ready, willing and able to perform.
Appellant's first point of error is that the trial court erred in refusing to conclude as a matter of law that with respect to a demand of specific performance of a contract to sell real estate, it is only necessary that the purchaser plead and prove that he is ready, willing and able to pay the consideration and offer to perform the essence of the agreement. Appellant's second point of error is that the trial court erred in refusing to find that Appellant was ready, willing and able and attempted to pay the agreed upon purchase price in accordance with the terms of the earnest money contract on May 21, 1982. The third point of error states that the trial court erred in refusing to find that Appellant was ready, willing and able to perform on May 21st as the same was established as a matter of law and for the reason that the same was established by the great weight and preponderance of the evidence. We will consider these three points together.
There is no dispute that the Original Petition pleads that Appellant was ready, willing and able to complete the contract. The parties differ as to whether Appellant successfully proved that it was ready, willing and able. The earnest money contract expressly provides "The consideration for the sale and conveyance of said property is $60,000 payable as follows: $60,000 cash... (emphasis added)." Appellant does not contend that it tendered the purchase price in cash, but argues that since Appellee failed to complain of the medium of payment, Appellee has waived any objection he may have had.
As stated above, Busey took two checks to the title company on May 21st. One check was written by Waters in the amount of $23,000. The other check was for $37,000 and was drawn on Builders Sand's account at Town and Country Bank. The balance of Appellant's account at the bank was less than the amount that the check *121 was written for, but officials of the bank testified that the check would have been honored regardless of the balance in the account. The trial court concluded that "an insufficient funds check tendered in performance of an earnest money contract does not constitute the required contractual tender of cash." Without regard to the issue of the "sufficiency" of the check, the trial court was correct in concluding that Appellant had not met the required contractual tender of cash.
A check does not constitute a sufficient tender of payment when the contract calls for payment in cash. Moore v. Copeland, 478 S.W.2d 573 (Tex.Civ.App.Corpus Christi 1972, writ ref'd n.r.e.). Appellant seeks to avoid the failure to tender cash by arguing that Appellee waived that objection by failing to object to the form of payment. Gheen v. Diamond Shamrock Corp., 529 S.W.2d 289, 293 (Tex.Civ.App. Waco 1975, no writ).
If Appellant, through the acts of Busey, committed an anticipatory breach of the contract and Appellee accepted such a repudiation, then any tender of payment the next day, by check or cash, was ineffective. However, if there was no repudiation, then Appellant has the burden of proving a valid tender. Rozelle v. First National Bank in Dallas, 535 S.W.2d 768 (Tex.Civ.App.Waco 1976, writ ref'd n.r. e.).
Since, on these facts, time was of the essence, Appellant had to produce evidence that its tender was in conformance with the contract. There is nothing in the record to indicate that Appellee waived the cash requirement. Appellee stated that he was not willing to accept a personal check at all and that he expected cash or a cashier's check on the date specified in the contract for closing. Appellee did not accept the checks as payment or reject them on May 21st because he was not at the title company since Busey told him there would be no closing on that date.
Appellant has failed to establish either as a matter of law or by the great weight and preponderance of the evidence that it was ready, willing and able, and tendered the agreed upon purchase price in accordance with the terms of the earnest money contract on May 21, 1982. The trial court did not err in refusing to so find. Points of error two and three are overruled.
We have no disagreement with the general statement that with respect to a demand of specific performance of a contract to sell real estate, it is only necessary that a purchaser plead and prove that he is ready, willing and able to pay the consideration and offer to perform the essence of the agreement. But such a statement is just a generalized statement of the law. Since Appellant failed to so prove, the trial court did not err in refusing to make such a conclusion. Appellant's first point of error is overruled.
Appellant's fifteenth point of error is that the trial court erred in failing to allow Appellant to put on evidence of attorney's fees. At the close of the evidence, the court and the attorneys for the parties agreed to allow counsel for Appellant to put on evidence of attorney's fees at a later time. Before such evidence was given, the trial court entered judgment that Appellant take nothing in its suit to compel specific performance. Since Appellant did not prevail in this suit, the trial court did not commit reversible error in failing to allow the evidence on attorney's fees.
Due to our disposition of Appellant's first, second, third, tenth, thirteenth and fifteenth points of error, we need not address the remaining points of error.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902852/ | Mercure, J.
Cross appeals from an amended order of the Supreme Court (Conway, J.), entered April 7, 1987 in Albany County, which, inter alia, partially granted plaintiff’s motion for summary judgment.
Defendants were employed as electrologists under the terms of identical employment contracts with plaintiff dated October 1, 1984. As is relevant to the issues herein, the contracts provided that the employee for a period of six months after termination of the contract would not "within a ten (10) mile radius of 125 Wolf Road, Colonie, New York, directly or indirectly engage in the business of electrolysis” and "in the event of violation by [the employee] of the agreement against competition that [the employee] will pay as liquidated damages to [plaintiff] the sum of Four Hundred Dollars ($400.00) per day, for each day or part thereof that [the employee] continues to so break said agreement”. It is undisputed that defendants left plaintiff’s employ on October 18, 1985 and almost immediately opened a competing electrolysis business some 6.16 miles distant from the Wolf Road address in Albany County set forth in the employment contract.
Plaintiff commenced this action, seeking liquidated and actual damages against defendants for breach of the noncom-petition clause of the employment contracts. Defendants each counterclaimed for money damages alleged to have resulted from plaintiff’s fraudulent inducement of the employment contract. Following service of a reply, plaintiff moved and defendants cross-moved for summary judgment. Supreme Court granted partial summary judgment in favor of plaintiff on the issue of liability and otherwise denied plaintiff’s motion. The cross motion was denied in all respects. The order provided that the action be set down for trial as to the amount of actual damages sustained as a result of defendants’ breaches of contract. The parties cross-appeal.
We affirm. Clearly, the subject covenant not to compete was reasonable as to time and area, necessary to protect legitimate *945business interests, not harmful to the public and not unduly burdensome, particularly in view of defendants’ access to plaintiffs customer list (see, Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 499; Gelder Med. Group v Webber, 41 NY2d 680, 683). Indeed, the restrictions as to distance and time are far less onerous than those previously upheld by the courts (see, e.g., Borne Chem. Co. v Dictrow, 85 AD2d 646, 649 [three years and 150 miles]; Uniform Rental Div. v Moreno, 83 AD2d 629 [two years and unlimited as to area]). The remaining contentions advanced by defendants in opposition to plaintiffs motion for summary judgment, that the 10-mile provision was intended to mean 10 "driving” miles and that the employment contracts were executed under duress and were unconscionable, lack factual support.
We also agree with Supreme Court’s conclusion that the damages to be liquidated in accordance with the contract are grossly disproportionate to plaintiffs probable loss (see, Truck Rent-A-Center v Puritan Farms 2nd, 41 NY2d 420, 424-425). Plaintiff herself alleges that the fees collected from the 112 clients she claims were enticed away by defendants, during the entire six months preceding defendants’ departure, totaled $17,444.50, of which she would have received no more than one half. Further, the expenses attributable to the closing of plaintiffs second office, which opened in Saratoga County one month prior to defendants’ departure, bear no relationship to defendants’ breach of the noncompetition clause. It was defendants’ departure from plaintiffs employ and not their competing business which necessitated the closing of the new office. Inasmuch as the liquidated amount bears no reasonable relationship to the probable loss and the amount of actual loss is neither incapable nor difficult of precise estimation, Supreme Court correctly denied summary judgment on this issue (see, Truck Rent-A-Center v Puritan Farms 2nd, supra).
Order affirmed, 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/5902853/ | Casey, J.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered June 1, 1987 in Schenectady County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondents to enforce certain alleged violations of the Zoning Code of the Town of Rotterdam.
Pede Brothers, not a party to this proceeding, applied for a *946building permit on premises located at 2809 Guilderland Avenue in the Town of Rotterdam, Schenectady County. After approval of their site and building plans by the town’s Planning Commission, respondent Building Inspector issued the permit on or about May 20, 1986 and Pede Brothers made the improvements, which have been completed. Thereafter, by letter dated September 29, 1986, petitioner, as owner of property located at 2849 Guilderland Avenue, which is within 500 yards of the Pede Brothers’ property, complained to the Building Inspector, pursuant to section 270-59 of the Zoning Code of the Town of Rotterdam, of certain alleged violations of the zoning ordinance regarding yard size, building size, curbing, merger of side lots and parking space. By letter dated December 12, 1986, the attorney for the Planning Commission advised petitioner that Pede Brothers’ application had been approved and that it complied with the zoning ordinance. Petitioner then instituted this CPLR article 78 proceeding in the nature of mandamus to compel respondents to enforce the town’s zoning ordinance. Supreme Court dismissed the petition for untimeliness and for lack of a legal basis to support mandamus.
We agree with Supreme Court that the complaint procedure set forth in the zoning ordinance provides no basis for mandamus relief to petitioner, and, in the circumstances, we find petitioner’s proceeding for mandamus relief inappropriate. Petitioner’s proceeding to direct respondents to enforce the zoning ordinance insofar as it applies to Pede Brothers’ property is not a proceeding in mandamus to compel, but rather a proceeding in mandamus to review the determination to issue a building permit to Pede Brothers (see, Matter of Vergata v Superintendent of Bldgs. of Vil. of Westbury, 108 AD2d 750). This determination was a final administrative determination which could have been challenged by neighboring property owners, such as petitioner, in an article 78 proceeding in the nature of mandamus to review (supra). Having failed to seek timely judicial review in the first instance, petitioner cannot obtain that review by way of this proceeding.
Judgment affirmed, with 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/5902854/ | Judgment, Supreme Court, New York County (Eileen A. *450Rakower, J.), entered May 4, 2010, denying the petition, inter alia, to annul respondents’ determination, which denied petitioner’s application for accident disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the judgment vacated, the petition granted to the extent of annulling the determination of the Board of Trustees of the New York City Police Department Pension Fund, Article II, and the matter remanded to the Board of Trustees for further proceedings.
Petitioner, a police officer (now retired), responded to the World Trade Center (WTC) to provide assistance following the September 11, 2001 attacks. She was assigned to rescue, recovery and clean up operations in the vicinity of the WTC and worked approximately 75 hours over five days between September 11 and 27, 2001. A triage form filled out on September 15, 2001 showed that petitioner was coughing and complaining of rib pain.
In December 2001, petitioner began coughing up bloody sputum. On February 11, 2002, she complained of difficulty breathing, chest pain, a cough, and congestion as a result of exposure to debris, smoke and or particulate matter in the air at the WTC, and the Police Department (NYPD) approved line of duty injury status for her. Petitioner was admitted to the hospital, where testing revealed a 3.5-centimeter mass in the basal segment of her right lung, obstructing the right lower-lobe bronchus. On March 2, 2002, petitioner underwent a thoracotomy to remove the carcinoid tumor.
On June 22, 2005, petitioner retired from the NYPD. Although she was approved for the Police Commissioner’s application for ordinary disability retirement (ODR), the Board of Trustees denied her application for accident disability retirement (ADR) by virtue of a tie vote based on reports of the Medical Board finding that her respiratory disability was caused by the surgery performed to remove the tumor and that the tumor was not the result of her service at the WTC site.*
Ordinarily, a claimant filing for ADR benefits has the burden of proving causation in an administrative proceeding. However, Administrative Code of City of NY § 13-252.1 (1) (a) creates a presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the WTC, stating: “Notwithstanding any *451provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member’s own willful negligence, unless the contrary be proved by competent evidence.”
To qualify for the presumption, a claimant must have participated in operations at one of the enumerated locations for “any period of time within the forty-eight hours after the first airplane hit the towers” or “a total of forty hours accumulated any time between September eleventh, two thousand one and September twelfth, two thousand two” (Retirement and Social Security Law § 2 [36] [g] [i], [ii]). Petitioner fulfills this requirement. A claimant must also suffer from a statutorily defined qualifying condition, including “new onset diseases resulting from exposure as such diseases occur in the future including cancer” (Retirement and Social Security Law § 2 [36] [c] [v]). The issue is whether petitioner fulfills this requirement.
Although the WTC presumption is not a per se rule mandating enhanced accidental disability retirement benefits for first responders in all cases, the Pension Fund bears the initial burden of coming forward with affirmative credible evidence to disprove causation (see Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 NY3d 268, 281-282 [2012]). Credible evidence “proceeds from a credible source and reasonably tends to support the proposition for which it is offered” and “must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion” (Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997]). The petitioner “carrie[s] no burden to offer any evidence of causation,” and the Board may not “deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure” or “rely on petitioner’s deficiencies to fill its own gap in proof’ (Bitchatchi, 20 NY3d at 284, 282, 284).
In Bitchatchi, the Court of Appeals affirmed this Court’s determinations in Matter of Macri v Kelly (92 AD3d 53 [1st Dept 2011]) and Bitchatchi (86 AD3d 427 [1st Dept 2011]) affirming Supreme Court decisions finding that no credible evidence rebutted the presumption that the petitioner’s qualifying medical conditions were caused by work at the WTC. The Court reversed our determination in Matter of Maldonado v Kelly (86 *452AD3d 516 [1st Dept 2011]) affirming a finding of no causal relationship between WTC work and cancer based on the short amount of time between September 2001 and the discovery of the petitioner’s tumor in November 2001. The Court of Appeals explained: “Under the statutory burden of proof, we believe the Board of Trustees did not satisfactorily rebut the presumption with credible evidence. Petitioner’s cancerous tumor grew from the size of a walnut to a softball between September 2001 and November 2001. The Board and the courts below focused on the equivocal nature of the evidence submitted by petitioner in his attempt to demonstrate that the cancer was aggravated by his WTC exposure. In particular, they rejected the opinion of Dr. Sung provided in two letters as speculative and conjectural. But in light of the presumption, petitioner carried no burden to offer any evidence of causation. Simply put, the Board could not rely on petitioner’s deficiencies to fill its own gap in proof” (Bitchatchi, 20 NY3d at 284).
Here, petitioner advised the Board that she did not smoke. The record shows no history of cancer before petitioner’s WTC exposure and the Medical Board cited no credible evidence to the contrary. Rather, in recommending that petitioner’s application for ADR be denied, the Medical Board, in its report dated December 12, 2008, stated: “9. It is the opinion of the Article II Medical Board that although Retired Police Officer McAuley was exposed to World Trade Center dust, the size of her tumor, namely 3.5cm, discovered a few months following her exposure, (hemoptysis bloody sputum) which is a typical sign of carcinoid tumor dating to December 2001, make it impossible that the tumor is related to her exposure. This is so because it would take a tumor of this size and this grade malignancy a much longer time to have developed and become clinically evident. She had an uneventful surgical procedure and delivered a normal child subsequently. In summary, the officer has had a successful thoracotomy and a right lower lobectomy with subsequent mild pulmonary insufficiency and is considered to be disabled for Ordinary Disability Retirement but not World Trade Center related disability.”
However, as in Maldonado, this conjecture, based on the size of the tumor alone, does not suffice to rebut the WTC presumption. Petitioner’s tumor was discovered on February 14, 2002 by a CT chest scan. While she complained of chest pains once in 1999, there is no record of treatment for a lung condition until she complained of pulmonary issues on September 15, 2001 and December 23, 2001.
Respondents argue that because the Board of Trustees’ deter*453mination was reached by a tie vote, the court may not set aside the denial of ADR unless it can conclude as a matter of law that the disability was the natural and proximate result of a service-related incident. However, this too was rejected in Bitchatchi. As the Court of Appeals explained, “[T]he Board misapprehends the significance of the WTC presumption. When the Board fails to rebut the presumption, the WTC statute presumes causation and contemplates the award of ADR benefits—even if the claimant offers no medical proof’ (20 NY3d at 283).
Accordingly, because the record contains no affirmative credible evidence supporting the determination that petitioner’s carcinoid lung tumor and pulmonary disease were not incurred in the line of duty, we reverse, and hold that petitioner is entitled to ADR benefits pursuant to the WTC presumption, which respondents failed to rebut. Since petitioner has been receiving ODR benefits in the interim, the matter is remitted to the Board for a recomputation of the appropriate level of benefits. Concur—Mazzarelli, J.P., Andrias, Acosta, Moskowitz and Abdus-Salaam, JJ.
Under New York City pension rules, police officers qualifying for ODR benefits generally get one half of their final salaries, which is taxable. Those qualifying for ADR get three quarters of their final salaries tax-free. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902855/ | Casey, J.
Appeal from that part of an order of the Supreme Court (Lynch, J.), entered March 25, 1987 in Schenectady County, which denied plaintiffs cross motion for a default judgment or summary judgment.
*947Plaintiff appeals only from that portion of the order which denied his requested relief. Plaintiff failed to appeal from that portion of the order which granted defendant permission to serve a properly verified answer.
The dispute stems from facts which reveal that on November 8, 1986, at approximately 6:20 a.m., a building in an industrial park in the Town of Rotterdam, Schenectady County, owned by defendant and partially leased to plaintiff for the remanufacture of pallets, was destroyed by fire. As a result, plaintiff sued defendant for its failure to properly keep and maintain a fire alarm and sprinkler system. On or about December 15, 1986, plaintiff served its summons and complaint upon the Secretary of State pursuant to Business Corporation Law § 306. Attorneys for defendant claim they received these pleadings on January 14, 1987, the final day on which to serve an answer or otherwise appear, and having no indication that plaintiff’s complaint was verified, served an unverified answer on plaintiff’s attorney on the same day, January 14, 1987. This answer was rejected by plaintiff for lack of proper verification. On January 16, 1987 the same answer, verified by one of defendant’s attorneys, was received back by plaintiff. Again the answer was rejected and returned on January 16, 1987 due to plaintiff’s attorney’s dissatisfaction with the attorney’s verification and because plaintiff’s attorney contended that an officer of defendant was in Schenectady County and able to verify the answer. Thereafter, on or about January 30, 1987, defendant moved to compel the acceptance of its answer and plaintiff cross-moved for, inter alia, a default judgment pursuant to CPLR 3215.
Supreme Court granted defendant’s motion to serve a properly verified answer and denied plaintiff’s cross motion in its entirety. Pursuant to the order of the court entered upon its decision, defendant has timely served a third answer appropriately verified by a corporate officer.
We agree with the determination of Supreme Court since plaintiff has failed to show any prejudice whatsoever resulting from the defective verification or the short delay involved (see, Chisholm-Ryder Co. v Sommer & Sommer, 70 AD2d 429). The order, insofar as appealed from, should be affirmed.
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/5902856/ | Casey, J.
Appeal, in action No. 1, from an order of the Supreme Court (Travers, J.), entered June 5, 1987 in Rensselaer County, which denied defendant’s motion to, inter alia, amend its answer or dismiss the complaint.
Cross appeals, in action No. 2, from an order of the Supreme Court (Keniry, J.), entered June 30, 1987 in Rensselaer County, which denied defendant’s motion to amend its answer and partially granted defendant’s motion to dismiss certain causes of action in the complaint.
The above entitled actions have been consolidated on this appeal by order of this court.
the zollers’ action (action No. 1.)
William and Agnes Zoller, husband and wife, commenced an action against defendant in October 1985. Their complaint alleged that defendant negligently installed an electrical transformer at their residence in the City of Rensselaer in or about January 1978 which has resulted in the premature burnout of electrical appliances in their home, causing them damages in the amount of $20,000, although the itemized damages total only $7,131. In its answer, defendant asserted the failure of the complaint to state a cause of action, the expiration of the Statute of Limitations and that the damages should be reduced by the Zollers’ own culpability. In November 1986, defendant moved to amend its answer to plead an exculpatory tariff filed with the Public Service Commission and to dismiss the Zollers’ complaint as barred by this tariff and the Statute of Limitations. In relevant part, the exculpatory tariff provides: "In case the supply of service shall be interrupted or irregular or defective or shall fail from causes beyond Company’s control or because of the ordinary negligence of Company, its employees, servants or agents, Company will not be liable therefore [sic]”.
Supreme Court denied defendant’s motions, reasoning that the limitation of liability contained in the tariff was prohibited by 16 NYCRR 218.1, which provides:
"Every gas corporation, electric corporation and gas and electric corporation shall, where necessary, amend its filed tariff schedules by eliminating therefrom:
"(a) Provision attempting to relieve such corporation from liability arising from the gross negligence or willful misconduct of its officers, agents or servants.
*949"(b) Provisions limiting the liability of the corporation for damages resulting from its own negligence in connection with the property owned, installed or maintained by a customer or leased by a customer from a third party.
"(c) Provisions limiting the liability of the company for any damages resulting from the negligence of the company in connection with the supplying or use of electricity or gas or from the presence or operation of the company’s structures, equipment, wires, pipes, appliances or devices on the consumer’s premises.”
Supreme Court also found that although some of the Zollers’ damages might be barred by the Statute of Limitations, the action itself was not barred since the negligence alleged was continuous. The possible limitation of damages was deferred for trial determination. Defendant appeals.
the stones’ action (action No. 2.)
Richard and Anna Stone commenced an action against defendant in November 1982, alleging that since approximately July 1980 stray voltage from defendant’s power lines caused electric shock to run through their property in the Town of Hoosick, Rensselaer County, causing injury to their dairy cows and resulting in attendant damages totaling over $700,000. Eleven causes of action were stated. Defendant asserted the defenses of failure to state a cause of action, contributory negligence, assumption of risk, failure to mitigate damages, lack of privity (as to the Stones’ claims based on breach of warranty) and that the causes of action were duplicative, cumulative and/or speculative. Defendant moved to strike portions of the complaint and requested leave to amend its answer to include its disclaimer tariff.
Supreme Court dismissed the Stones’ causes of action for implied warranty, intentional infliction of economic harm, intentional infliction of emotional harm, strict liability and public nuisance. Supreme Court also denied defendant’s motion to amend its answer, since it was not accompanied by the proposed amended pleading and an affidavit to establish the merits of the amendment and a reasonable excuse for the delay. Supreme Court also determined that the tariff disclaimer was not applicable to the action.
Defendant appeals from so much of Supreme Court’s order as denied its motion to strike portions of the complaint and to amend its answer. The Stones cross-appeal.
*950The factual situations in both actions appear to lie outside the scope of permissible liability exemptions. Under 16 NYCRR 218.1, utility companies are not absolved from liability for ordinary negligence claimed as the result of the supply or use of electricity, as opposed to damages caused by the interruption of the supply of service (see, Lo Vico v Consolidated Edison Co., 99 Misc 2d 897, 898). This conclusion is further supported by the requirement that exculpatory clauses should be "strictly construed against the person seeking exemption from liability” (Shalman v Board of Educ., 31 AD2d 338, 342). As a matter of law, the attempted defense of the tariff disclaimer contravenes the public policy embodied in 16 NYCRR 218.1, and Supreme Court properly denied defendant’s motion to amend its answer to interpose the defense in both actions.
Supreme Court also properly denied defendant’s motion to dismiss the Zollers’ claim for damages for negligence as time barred under CPLR 214 (4). The Zollers allege continuous damage from January 1978 through January 1984. The action was commenced in October 1985. Although some of the damages may be barred by the Statute of Limitations, the continuing nature of the negligence alleged prevents the Statute of Limitations from operating as a complete defense. The Zollers should be afforded the opportunity of proving their viable damages at trial (see, Van Guilder v Town of Fallsburgh, 25 AD2d 338, 339).
As to the Stones’ cause of action sounding in strict liability, we believe it was properly dismissed under the authority of Farina v Niagara Mohawk Power Corp. (81 AD2d 700). Under this same authority, the Stones’ breach of warranty cause of action was also properly dismissed.
Finally, as did Supreme Court, we find no merit in the Stones’ cause of action for intentional infliction of economic and emotional harm (see, Fischer v Maloney, 43 NY2d 553, 557-558). For all of these reasons the orders of Supreme Court should be affirmed in both actions.
Orders affirmed, with costs to William Zoller and Agnes Zoller against Niagara Mohawk Power Corporation. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902857/ | Harvey J.
Appeal from an order of the Supreme Court (Dier, J.), entered May 27, 1987 in Warren County, which denied petitioners’ applica*951tion pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim.
The issue on appeal is whether petitioners should be granted leave to file a late notice of claim with respect to claimed violations by respondents of the Federal Civil Rights Act of 1871 (42 USC § 1983). On April 21, 1986, petitioner Pat Delzotto was allegedly arrested by officers of respondent Warren County Sheriffs Department and charged with grand larceny in the second degree. The charge was later dismissed. On July 8, 1986, petitioner served a notice of claim upon respondents alleging that the April 21, 1986 incident gave rise to claims for false arrest, false imprisonment, malicious prosecution and abuse of process. The notice of claim did not allege a violation of 42 USC § 1983.
On November 20, 1986, the Court of Appeals held, in 423 S. Salina St. v City of Syracuse (68 NY2d 474, cert denied — US —, 107 S Ct 1880), that the notice of claim requirements of General Municipal Law § 50-i, as limited by General Municipal Law § 50-e, apply to Federal civil rights actions. Upon learning of this decision by the Court of Appeals, petitioners sought, by an order to show cause dated April 6, 1987, permission to serve a late notice of claim asserting Federal civil rights claims against respondents. The application was denied without opinion. This appeal ensued.
We reverse. This court is vested with broad discretion in considering whether service of a late notice of claim should be permitted (Hamm, v Memorial Hosp., 99 AD2d 638; Matter of Febles v City of New York, 44 AD2d 369, 372; see, Matter of Chmielewski v City of New York, 61 NY2d 1010). Among the factors to be considered in determining whether to grant leave to file a late notice of claim are whether the public corporation had actual knowledge of the essential facts constituting the claim within the 90-day period or a reasonable time thereafter and whether the delay in serving the notice of claim substantially prejudiced the public corporation in preparing its defense (General Municipal Law § 50-e [5]; see, Baker v Board of Educ., 127 AD2d 967, revd on other grounds 70 NY2d 314; Barnes v County of Onondaga, 103 AD2d 624, 629-630, affd 65 NY2d 664).
Here, the initial notice of claim of petitioners, which was served July 8, 1986, put respondents on notice in a timely fashion of the essential facts which support the Federal civil rights claim. The facts were further developed within a rea*952sonable period at an examination of petitioner Pat Delzotto held February 11, 1987 pursuant to a demand of respondents (see, General Municipal Law § 50-h). Petitioners’ failure to include the Federal civil rights claim in its initial notice of claim, while perhaps not the most prudent course, was certainly understandable in light of the unsettled nature of the law at that time with respect to whether the notice of claim requirements applied to such actions. Indeed, as noted by the Court of Appeals in 423 S. Salina St. v City of Syracuse (supra, at 489), resolution of the issue involves interpretation of a Federal statute and the issue has not yet been addressed by the United States Supreme Court, nor is there agreement among various lower Federal courts which have considered the issue.
Finally, we are unpersuaded by respondents’ contention that they were prejudiced by the delay. The scope of the common-law claims set forth in the initial notice of claim was broad and the facts underlying those claims and the Federal claims for which petitioners seek leave to serve a late notice are essentially identical. Accordingly, we conclude that petitioners should have been granted leave to serve a late notice of claim with respect to the claims based upon the alleged violations of their Federal civil rights.
Order reversed, on the facts, without costs, and application granted. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902858/ | Judgment, Supreme Court, New York County (Eileen A. *450Rakower, J.), entered May 4, 2010, denying the petition, inter alia, to annul respondents’ determination, which denied petitioner’s application for accident disability retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the judgment vacated, the petition granted to the extent of annulling the determination of the Board of Trustees of the New York City Police Department Pension Fund, Article II, and the matter remanded to the Board of Trustees for further proceedings.
Petitioner, a police officer (now retired), responded to the World Trade Center (WTC) to provide assistance following the September 11, 2001 attacks. She was assigned to rescue, recovery and clean up operations in the vicinity of the WTC and worked approximately 75 hours over five days between September 11 and 27, 2001. A triage form filled out on September 15, 2001 showed that petitioner was coughing and complaining of rib pain.
In December 2001, petitioner began coughing up bloody sputum. On February 11, 2002, she complained of difficulty breathing, chest pain, a cough, and congestion as a result of exposure to debris, smoke and or particulate matter in the air at the WTC, and the Police Department (NYPD) approved line of duty injury status for her. Petitioner was admitted to the hospital, where testing revealed a 3.5-centimeter mass in the basal segment of her right lung, obstructing the right lower-lobe bronchus. On March 2, 2002, petitioner underwent a thoracotomy to remove the carcinoid tumor.
On June 22, 2005, petitioner retired from the NYPD. Although she was approved for the Police Commissioner’s application for ordinary disability retirement (ODR), the Board of Trustees denied her application for accident disability retirement (ADR) by virtue of a tie vote based on reports of the Medical Board finding that her respiratory disability was caused by the surgery performed to remove the tumor and that the tumor was not the result of her service at the WTC site.*
Ordinarily, a claimant filing for ADR benefits has the burden of proving causation in an administrative proceeding. However, Administrative Code of City of NY § 13-252.1 (1) (a) creates a presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the WTC, stating: “Notwithstanding any *451provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member’s own willful negligence, unless the contrary be proved by competent evidence.”
To qualify for the presumption, a claimant must have participated in operations at one of the enumerated locations for “any period of time within the forty-eight hours after the first airplane hit the towers” or “a total of forty hours accumulated any time between September eleventh, two thousand one and September twelfth, two thousand two” (Retirement and Social Security Law § 2 [36] [g] [i], [ii]). Petitioner fulfills this requirement. A claimant must also suffer from a statutorily defined qualifying condition, including “new onset diseases resulting from exposure as such diseases occur in the future including cancer” (Retirement and Social Security Law § 2 [36] [c] [v]). The issue is whether petitioner fulfills this requirement.
Although the WTC presumption is not a per se rule mandating enhanced accidental disability retirement benefits for first responders in all cases, the Pension Fund bears the initial burden of coming forward with affirmative credible evidence to disprove causation (see Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 NY3d 268, 281-282 [2012]). Credible evidence “proceeds from a credible source and reasonably tends to support the proposition for which it is offered” and “must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion” (Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 147 [1997]). The petitioner “carrie[s] no burden to offer any evidence of causation,” and the Board may not “deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure” or “rely on petitioner’s deficiencies to fill its own gap in proof’ (Bitchatchi, 20 NY3d at 284, 282, 284).
In Bitchatchi, the Court of Appeals affirmed this Court’s determinations in Matter of Macri v Kelly (92 AD3d 53 [1st Dept 2011]) and Bitchatchi (86 AD3d 427 [1st Dept 2011]) affirming Supreme Court decisions finding that no credible evidence rebutted the presumption that the petitioner’s qualifying medical conditions were caused by work at the WTC. The Court reversed our determination in Matter of Maldonado v Kelly (86 *452AD3d 516 [1st Dept 2011]) affirming a finding of no causal relationship between WTC work and cancer based on the short amount of time between September 2001 and the discovery of the petitioner’s tumor in November 2001. The Court of Appeals explained: “Under the statutory burden of proof, we believe the Board of Trustees did not satisfactorily rebut the presumption with credible evidence. Petitioner’s cancerous tumor grew from the size of a walnut to a softball between September 2001 and November 2001. The Board and the courts below focused on the equivocal nature of the evidence submitted by petitioner in his attempt to demonstrate that the cancer was aggravated by his WTC exposure. In particular, they rejected the opinion of Dr. Sung provided in two letters as speculative and conjectural. But in light of the presumption, petitioner carried no burden to offer any evidence of causation. Simply put, the Board could not rely on petitioner’s deficiencies to fill its own gap in proof” (Bitchatchi, 20 NY3d at 284).
Here, petitioner advised the Board that she did not smoke. The record shows no history of cancer before petitioner’s WTC exposure and the Medical Board cited no credible evidence to the contrary. Rather, in recommending that petitioner’s application for ADR be denied, the Medical Board, in its report dated December 12, 2008, stated: “9. It is the opinion of the Article II Medical Board that although Retired Police Officer McAuley was exposed to World Trade Center dust, the size of her tumor, namely 3.5cm, discovered a few months following her exposure, (hemoptysis bloody sputum) which is a typical sign of carcinoid tumor dating to December 2001, make it impossible that the tumor is related to her exposure. This is so because it would take a tumor of this size and this grade malignancy a much longer time to have developed and become clinically evident. She had an uneventful surgical procedure and delivered a normal child subsequently. In summary, the officer has had a successful thoracotomy and a right lower lobectomy with subsequent mild pulmonary insufficiency and is considered to be disabled for Ordinary Disability Retirement but not World Trade Center related disability.”
However, as in Maldonado, this conjecture, based on the size of the tumor alone, does not suffice to rebut the WTC presumption. Petitioner’s tumor was discovered on February 14, 2002 by a CT chest scan. While she complained of chest pains once in 1999, there is no record of treatment for a lung condition until she complained of pulmonary issues on September 15, 2001 and December 23, 2001.
Respondents argue that because the Board of Trustees’ deter*453mination was reached by a tie vote, the court may not set aside the denial of ADR unless it can conclude as a matter of law that the disability was the natural and proximate result of a service-related incident. However, this too was rejected in Bitchatchi. As the Court of Appeals explained, “[T]he Board misapprehends the significance of the WTC presumption. When the Board fails to rebut the presumption, the WTC statute presumes causation and contemplates the award of ADR benefits—even if the claimant offers no medical proof’ (20 NY3d at 283).
Accordingly, because the record contains no affirmative credible evidence supporting the determination that petitioner’s carcinoid lung tumor and pulmonary disease were not incurred in the line of duty, we reverse, and hold that petitioner is entitled to ADR benefits pursuant to the WTC presumption, which respondents failed to rebut. Since petitioner has been receiving ODR benefits in the interim, the matter is remitted to the Board for a recomputation of the appropriate level of benefits. Concur—Mazzarelli, J.P., Andrias, Acosta, Moskowitz and Abdus-Salaam, JJ.
Under New York City pension rules, police officers qualifying for ODR benefits generally get one half of their final salaries, which is taxable. Those qualifying for ADR get three quarters of their final salaries tax-free. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902859/ | Levine, J.
Appeal from a judgment in favor of claimants, entered January 30, 1987, upon a decision of the Court of Claims (Hanifin, J.).
To complete the Route 17 Big Flats interchange, the State, pursuant to Highway Law § 30 and the EDPL, appropriated 1.116 acres in fee and .358 acre as a permanent dyke easement from a seven-acre parcel owned by claimants, Robert L. Andrew (hereinafter claimant) and his wife, in the Town of Big Flats, Chemung County. The land was vacant except for one residential structure when the appropriation became effective on August 31, 1982. Thereafter claimant commenced this action in the Court of Claims to recover just compensation for the partial taking. At trial, claimant sought to prove that the highest and best use of the property was as a residential subdivision. The State, however, contested the land’s suitability for that potential use and proffered its determination that *953the highest and best use of the parcel at the time of the appropriation was vacant land with some residential potential, but not as a subdivision. The Court of Claims determined that claimant had not proved that the land had a potential use as a multiple-lot subdivision and that the appraisals submitted by claimant, which valued the parcel as if it was already subdivided, were of no probative value. The court accepted the report and testimony of the State’s appraiser and awarded claimant a total of $1,816 plus interest. This appeal by claimant ensued.
Claimant contends that the Court of Claims erred in refusing to find that the best and highest use of the parcel was as a residential subdivision. Claimant, however, bore the burden of proof to establish his right to substantial compensation (see, Heyert v Orange & Rockland Utils., 17 NY2d 352, 364; see also, 5 Nichols, Eminent Domain § 18.5). The evidence adduced at trial established that in 1975, claimant submitted a preliminary subdivision plan for this parcel to the town Planning Board. Claimant admitted that there was considerable opposition to the proposal from the residents in the area. Following hearings on the subdivision proposal, the Planning Board unanimously rejected it because of the water and drainage problems which existed on the land. At the same time, the county Health Department recommended to claimant’s engineers ways in which the drainage problems could be alleviated. Claimant never acted upon these recommendations or made further attempts to obtain approval for the subdivision. In light of this evidence, the inadequacy of claimant’s proof to establish the land’s suitability for subdivision development was described by the Court of Claims in its decision as follows: "[Claimant called no witnesses with regard to the history of the subject property and the likelihood that it could have been developed as a subdivision. In fact, he did not call his consulting engineer as a witness. It may be that the drainage problems on the subject property could have been corrected at a reasonable cost and that it would have been economically feasible to develop the subject property as a subdivision. Unfortunately, there is simply no proof that this was the case, other than claimant’s pronouncements from the witness stand.” The State, on the other hand, produced a number of witnesses and technical reports which detailed the drainage problems on claimant’s land in support of its contention that the land was unsuitable for development as a multiple-lot subdivision. Based on the foregoing, the Court of *954Claims could properly find that the potential for subdivision use of the parcel as of the date of the taking was too remote, and hence, could not be considered in assessing claimant’s damages from the partial appropriation (see, Matter of County of Suffolk [Gardner], 55 AD2d 604, appeal dismissed 43 NY2d 842; see generally, 51 NY Jur 2d, Eminent Domain, §§ 171, 174, at 249-252, 255-258).
Furthermore, we perceive no error in the Court of Claims acceptance of the State’s evidence regarding the amount of compensation owed to claimant. All three of claimant’s appraisals were superficial and not in compliance with the court rules then in effect for such reports (see, 22 NYCRR former 1200.19). Moreover, all of claimant’s evidence concerning fair market value and damages proceeded from the premise that the land had been subdivided. By contrast, the State’s appraisal was complete, detailed and properly reflected the land’s highest and best use as determined by the court. Under such circumstances, it was not error for the court to adopt the State’s evidence in awarding compensation to claimant (see, Matter of City of New York [Broadway Cary Corp.] 40 AD2d 865, 866, affd 34 NY2d 535).
Claimant’s other contentions have been considered and are without merit.
Judgment affirmed, without costs. Kane, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902954/ | Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or about April 5, 2011, which granted defendants Jose Tambunting, Miguel Tambunting and Jose Tambunting, Jr.’s motion to dismiss the second and fourth causes of action as *468against them, and order, same court and Justice, entered on or about January 13, 2012, which, upon renewal, adhered to the original determination, unanimously affirmed, with costs.
Plaintiffs allege in support of the second and fourth causes of action that they revoked the powers of attorney they had given their father, who nevertheless transferred their interests in an apartment to their brothers, and that the brothers knew that their father was without authority to effect the transfer. These causes of action cannot be sustained, because plaintiffs failed to record their alleged revocations in the county where the powers of attorney, which contained the power to convey real property, were recorded (see Real Property Law §§ 294 [1]; 326). Concur— Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6495499/ | 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
DAVID SCOTT PEASLEY, No. 18-56648
Plaintiff-Appellant, D.C. No. 5:15-cv-01769-LHK
v.
MEMORANDUM*
M. ELIOT SPEARMAN, Warden; et al.,
Defendants-Appellees,
and
P. MULLEN, Appeal Coordinator,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted January 13, 2022
Pasadena, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District
Judge. Partial Dissent by Judge FRIEDLAND.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Plaintiff-Appellant David Peasley, a California prisoner, brought an action
against several prison officials under 42 U.S.C. § 1983, alleging that the officials
were deliberately indifferent to his medical needs in violation of the Eighth
Amendment. Peasley suffers from Type 1 diabetes and he alleges that various
actions by the officials improperly denied him treatment for his medical needs. The
district court granted the officials’ motion for summary judgment and dismissed all
counts except for two counts (Counts 4 and 8), which subsequently proceeded to
trial.
Peasley appeals from the district court’s summary judgment dismissing
Counts 6 and 9 of his amended complaint. We have jurisdiction under 28 U.S.C. §
1291. We review a district court’s summary judgment de novo. See Mull for Mull
v. Mot. Picture Indus. Health Plan, 865 F.3d 1207, 1209 (9th Cir. 2017) (citation
omitted). We reverse and remand the district court’s dismissal of Count 6, and we
affirm the district court’s dismissal of Count 9.
A.
In Count 6, Peasley alleges that Defendants Officers Lopez, Gibson, and
Orozco violated the Eighth Amendment by denying him access to medical care. The
district court dismissed Count 6 on non-exhaustion grounds, holding that Peasley
failed to file properly an appeal with the Inmate Appeals Office and failed to show
that administrative remedies were unavailable. For the following reasons, we hold
2
that Peasley’s failure to exhaust administrative remedies does not bar his claim
because the administrative scheme is so opaque that it is effectively unavailable.
Accordingly, we reverse and remand.
Under the Prisoner Litigation Reform Act (PLRA), “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). “Exhaustion requires complying with an agency’s ‘critical procedural
rules,’” and the “level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim,” as it is “the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Fuqua v. Ryan, 890 F.3d 838, 844–45 (9th Cir. 2018) (citations omitted). A failure
to exhaust, however, does not bar a prisoner’s claim if “there is something in his
particular case that made the existing and generally available administrative
remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th
Cir. 2014). For instance, an administrative procedure is effectively unavailable
when “an administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use.” Ross v. Blake, 578 U.S. 632, 643 (2016). “In this
situation, some mechanism exists to provide relief, but no ordinary prisoner can
discern or navigate it.” Id. at 643–44.
3
In this case, it is undisputed that Peasley did not exhaust administrative
remedies, but Count 6 should not have been dismissed for failure to exhaust because
the process was so opaque as to be unavailable. See id. At the outset, it appears that
Peasley received conflicting instructions from different appeals administrators that
foreclosed any possible remedy. Peasley’s initial complaint, a CDCR Form 602
complaint filed on September 30, 2013, alleges that he was denied access to
medication by “security officers” Lopez, Orozco, Balli, and Gibson. Specifically,
he alleges that officers were “very rude” about his “medical need” and “denied
medical itself.” The complaint was only against security officers and did not raise
any allegations against nurses or any healthcare staff. The complaint was initially
filed with the inmate appeals office but was subsequently forwarded and refiled with
the health care appeals office. Each appeals office rejected his complaint and
referred him to the other office, appearing to foreclose any remedy.
Moreover, it is unclear whether an appeals office’s jurisdiction turns on the
issue involved or on the staff involved. The initial rejection letter from the inmate
appeals office suggests that jurisdiction turns on the issue involved, as it advised
Peasley that his “appeal issue should be submitted to the appropriate CDCR unit for
review” and that his “appeal has been forwarded to health care staff for review and
processing.” Appellant’s Excerpts of Record Vol. 3 at 32, Peasley v. Spearman, No.
18-56648 (9th Cir. Feb. 19, 2021), ECF No. 33-3. The subsequent rejection letter
4
by the health care appeals coordinator then indicated to Peasley that he cannot submit
an appeal to the health care appeals office that contains both “custody and medical
issues which cannot be addressed together,” and must “[s]eparate [his] issues and
resubmit health care issues.” Id. at 34. However, after Peasley resubmitted the same
complaint to the health care appeals office and specifically referred to his “medical”
need, the health care appeals office then proceeded to reject the appeal because his
“appeal issue is not a health care services issue over which [it] has jurisdiction,” and
instructed Peasley to “submit a green inmate/parolee appeal CDCR 602 form to the
Inmate Appeals Office” if he “would like to proceed with a staff complaint against
custody.” Id. at 29. This suggests that the health care appeals office does not handle
complaints against custodial staff, even if about a medical issue. If the appeals
offices themselves cannot agree on whether jurisdiction turns on the subject of the
complaint or the personnel involved, we cannot expect an ordinary prisoner to
discern the answer and navigate the process. See Ross, 578 U.S. at 643–44.
The rejection letters could be read to suggest that generally medical issues
should be referred to the health care appeals office while custody issues should be
referred to the inmate appeals office. But the letters only focused on a requirement
that “multiple issues” be separated into separate appeals and did not provide any
guidance on what is required in a situation like Peasley’s. For instance, it is unclear
if a complaint like Peasley’s that alleges medical issues against custodial staff should
5
be filed with the health care office or the inmate office. Similarly, there is no
guidance on where a complaint that alleges custodial issues against medical staff
should be filed. Indeed, a detailed review of the record and briefs leaves us unable
to determine where and how Peasley should have filed his complaint, or if such a
complaint is even possible. Thus, the administrative procedure here is “so confusing
that . . . no reasonable prisoner can use them,” making it essentially “no longer
available.” Ross, 578 U.S. at 644 (citation omitted). We reverse the district court’s
dismissal of Count 6 on non-exhaustion grounds and remand for further proceedings.
B.
In Count 9, Peasley alleges that Defendant Officer Lopez violated the Eighth
Amendment by denying him, a “diabetic who uses insulin and has food
requirements,” entry to his building at lunchtime. The district court granted
summary judgment and dismissed Count 9, holding that Peasley failed to raise a
genuine dispute of material fact as to whether Officer Lopez was aware of Peasley’s
serious medical need. We agree with the district court and affirm.1
A prison official’s “deliberate indifference to serious medical needs of
prisoners” violates the Eighth Amendment because it constitutes “unnecessary and
1
Because we conclude that the district court is correct in holding that there
is no genuine dispute of material fact as to whether Defendant Officer Lopez was
aware of a serious medical need by Peasley, we need not address Officer Lopez’s
qualified immunity arguments.
6
wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation
omitted). “This is true whether the indifference is manifested by prison doctors in
their response to the prisoner’s needs or by prison guards in intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once
prescribed.” Id. at 104–05 (footnotes omitted). But not “every claim by a prisoner
that he has not received adequate medical treatment states a violation of the Eighth
Amendment.” Id. at 105. Rather, “a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs. It
is only such indifference that can offend ‘evolving standards of decency’ in violation
of the Eighth Amendment.” Id. at 106. Thus, the standard sets a high bar. Indeed,
a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). In essence, “deliberate indifference”
requires “a showing that the official was subjectively aware of the risk.” Id. at 829.
Here, Peasley alleges that Officer Lopez purposefully denied him access to
medical care when she denied him access to his building during lunch time. But
Peasley failed to provide any direct evidence to show that Officer Lopez knew that
he had a significant medical need. On September 16, 2013, after Peasley received
7
his insulin during an appointment, he arrived late to his building at lunchtime and
Officer Lopez denied him entry until the next release time. Peasley informed Officer
Lopez that he needed lunch, and Officer Lopez responded “that’s good enough”
when she found crackers in Peasley’s pocket. Peasley’s mere assertion that he
needed lunch on September 16, 2013, is insufficient to show that Officer Lopez knew
he had a serious medical issue. By his own admission, Peasley never told Officer
Lopez that he had just received insulin and needed lunch for medical purposes. He
also did not explain to Officer Lopez why he needed to be let into his building for
lunch and why the small snack in his pocket was not enough. There is also no
evidence in the record that shows Officer Lopez knew Peasley had received an
insulin shot right before his request for lunch on that date. In short, Peasley did not
mention his diabetes or his need for lunch due to a serious medical issue to Officer
Lopez when he was denied entry to his building.
Instead, Peasley relies only on various circumstantial evidence to show that
Officer Lopez knew of his serious medical issue. To be sure, there is evidence that
Officer Lopez knew that Peasley had diabetes. For instance, Peasley alleges that on
September 9, 2013, he informed Officer Lopez that he had an urgent need for
medical attention because his morning and noon blood tests indicated high blood
sugar levels. In addition, Officer Lopez’s deposition testimony suggests that she
knew crackers are “something special to diabetics” and that diabetics “keep crackers
8
in their cell” so they “can eat if they need to.” Ultimately, however, none of the
circumstantial evidence shows that Officer Lopez subjectively knew Peasley had a
serious medical issue on September 16, 2013, when he asked to be let into his
building for lunch. Cf. Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003)
(holding that officers knew of plaintiff’s diabetic condition because he told the
officers of his deteriorating condition and pleaded that he is “a diabetic, and all [he]
needed was food”). Moreover, there is no evidence that Peasley was otherwise
visibly ill or clearly experiencing health issues. Cf. id. (holding that a jury could
infer that the officers knew of the plaintiff’s diabetic condition because they could
infer from his testimony that he “exhibited noticeable shaking, disorientation,
sweating and pallor”). Nor was there a pattern of Peasley requesting entry for lunch
due to his medical condition. Cf. Clement v. Gomez, 298 F.3d 898, 905 (9th Cir.
2002) (concluding that custody officers were subjectively aware of plaintiffs’ serious
medical needs in part due to plaintiffs’ “repeated requests for attention, complaining
of breathing problems, pain, and asthma attacks”). Had Peasley told Officer Lopez
he was diabetic and needed food for medical purposes or that he just received an
insulin shot on September 16, 2013, it would have clearly created a genuine dispute
of material fact as to whether Officer Lopez knew of his serious medical need and
purposefully denied the necessary medical care.
9
Therefore, we agree with the district court that Peasley failed to show a
genuine dispute of material fact as to whether Officer Lopez knew of his serious
medical need at the time of the incident. Accordingly, we affirm the district court’s
dismissal on Count 9.
AFFIRMED in part, REVERSED in part, and REMANDED.
10
Peasley v. Spearman, No. 18-56648 FILED
FRIEDLAND, Circuit Judge, dissenting in part: JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority’s analysis of Count 6, but I would reverse the grant
of summary judgment to Officer Lopez on Count 9. I believe there was a genuine
dispute whether Officer Lopez knew of Peasley’s serious medical need when she
denied Peasley access to his building at lunchtime on September 16, 2013. And
because it was clearly established that “a constitutional violation may take place
when the government does not respond to the legitimate medical needs of a
detainee whom it has reason to believe is diabetic,” Lolli v. County of Orange, 351
F.3d 410, 420 (9th Cir. 2003), I would hold that Officer Lopez is not entitled to
qualified immunity.
The majority concludes that because Peasley did not tell Officer Lopez in
the moment that Peasley was diabetic, that he had just taken insulin, and that he
needed lunch due to his medical condition, he failed to create a genuine issue of
material fact regarding Lopez’s subjective knowledge of his diabetic condition and
medical need. But there is evidence in the record that Lopez already knew Peasley
was diabetic and could have inferred that his urgent request for lunch was related
to a serious medical need.
Peasley stated in a sworn declaration that on September 9, 2013—one week
before Lopez denied him access to lunch—he awoke feeling sick, nauseous,
1
sluggish, and drained. After his condition did not improve during the day, he
requested an urgent medical pass from Lopez, who refused and instead locked him
in a cell. Peasley declared that on that day, “Defendant Lopez was well aware of
the diabetes. She was told of [the] illness and was asked for urgent medical care.”
He also stated, more generally, that “each officer is aware of who the few are
(diabetics).”
Officer Lopez’s deposition testimony also supports the inference that she
knew of Peasley’s diabetes and his medical need for food. When Lopez told
Peasley that he did not need a meal because he had crackers in his pocket, she
knew that such crackers were “something special to diabetics.” But Peasley
arrived at the building shortly after noon, and Lopez told him that he could not go
back in until 2:30 p.m. Viewing these facts in the light most favorable to Peasley,
a reasonable jury could conclude that Lopez knew of and consciously disregarded
the substantial risk of serious harm Peasley faced if deprived of a meal for over
two hours. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Because I believe there was a genuine issue of material fact that precluded
summary judgment, I respectfully dissent.
2 | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902860/ | Harvey, 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 sustained a sales and use tax assessment imposed under Tax Law articles 28 and 29.
The issue on appeal is whether respondent’s determination that petitioner failed to timely request a hearing within 90 days of receipt of the notice of determination as required by Tax Law § 1138 (a) was arbitrary. On October 12, 1982, petitioner was issued a notice of determination and demand for payment of sales and use taxes in the amount of $15,052.33 plus interest for the period June 1, 1979 to May 31, 1982. Petitioner’s attorney, Allan Henis, testified that on January 6, 1983 he met petitioner for lunch and that at that time petitioner signed a letter which Henis had prepared requesting a hearing. Henis testified that he then placed the *955signed letter in an envelope and sent it via ordinary mail to respondent’s district office, located at 2 World Trade Center in New York City.
Petitioner did not hear from respondent until January 1984 when a warrant was issued and a judgment filed for payment of taxes. Thereafter, in February 1984, petitioner filed a petition and a hearing ensued. Upon reviewing its files, respondent was unable to find any evidence that it had received petitioner’s letter requesting a hearing. Thus, an initial issue was whether petitioner had requested a hearing in a timely fashion. The Hearing Officer found that the request for a hearing had been made in a timely fashion. However, upon administrative review respondent concluded that petitioner had failed to make the request within 90 days. Respondent thus held that the matter was time barred and refused to consider the merits of the case. This proceeding ensued.
When reviewing an administrative determination, this court does not have authority to weigh the evidence and reject the agency’s choice of conflicting evidence (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). Respondent’s resolution of conflicting evidence must be accepted if not irrational (see, Matter of Jacobson v State Tax Commn., 129 AD2d 880, 881-882). Here, petitioner’s attorney testified that the request for a hearing was mailed on January 6, 1983. This testimony was not corroborated by a contemporaneous affidavit of mailing or a registered or certified mail receipt. The letter had not been mailed to respondent’s Albany office as required by the regulations in effect at that time. A search of respondent’s files failed to reveal that the letter had been received. Faced with this evidence, we cannot say that respondent’s conclusion that petitioner failed to timely request a hearing is irrational.
Determination confirmed, and petition dismissed, without 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/5902862/ | Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 12, 2011, which denied defendants’ motion for summary judgment dismissing the complaint, and denied plaintiffs cross motion for summary judgment as to the first, second and third causes of action, modified, on the law, to dismiss the first and second causes of action, and otherwise affirmed, without costs.
The written agreement upon which plaintiff seeks a success fee and certain real estate broker’s commissions is unenforceable as vague, since the agreement fails to set the price or compensation to be received by plaintiff. Nor does it provide for a means to calculate same (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91-92 [1991]). As such, the IAS court should have granted defendants summary judgment on the two breach of contract claims.
With regard to plaintiffs claim for unjust enrichment, it was properly permitted to proceed, as there was no enforceable agreement regarding the same subject matter (cf. IDT Corp. v *454Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]). Moreover, fact issues preclude dismissal as to defendants Joseph Tahl and Tahl Propp Equities, LLC, as both apparently dealt directly with plaintiff on this transaction, and both are alleged to have benefitted from the transaction (see Georgia Malone & Co., Inc. v Rieder, 86 AD3d 406 [2011]). Concur—Mazzarelli, J.P., Manzanet-Daniels and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902863/ | Moskowitz, J.,
dissents in part and concurs in part in a memorandum as follows: I dissent to the extent the majority (1) dismisses the breach of contract claims as vague and unenforceable; (2) permits the unjust enrichment claims to proceed; and (3) retains the claims against defendant Tahl individually. Although the agreement here is hardly a model of clarity, the parties do not dispute the meaning of its salient terms. Thus, I would not dismiss the breach of contract claims as vague and unenforceable. However, because the parties’ accountants disagree as to how to interpret the applicable financial documents and because the record is devoid of financial documents upon which the parties relied, summary judgment is not warranted. I would also dismiss the claims against defendant Tahl individually.
Plaintiff Magnum Real Estate Services, Inc. is a licensed real estate broker. On May 18, 2001, Magnum entered into a contract to purchase four mixed-use investment properties in Harlem for a purchase price of $1.9 million. In October 2001, Magnum assigned the contract of sale to 133-134-135 Street LLC (Street), a single-purpose limited liability company that defendants Joseph Tahl, Tahl-Propp Equities, and Tahl Propp Manhattan North Investors II, LLC allegedly control. In consideration for that assignment, Magnum received $85,000. The closing on Street’s purchase of the properties occurred on or about October 10, 2001. Plaintiff claims it was supposed to have received additional consideration for the assignment that the parties memorialized in a memorandum to “Sony” that Tahl drafted, dated November 16, 2001 (the Post-Script). The Post-Script states in relevant part: “The above payment of $85,000.00 is a partial payment. You also will be compensated with a portion of re-finance proceeds at closing of the re-financing above our total cost basis, including acquisition and renovation cost, upon the successful renovation, lease-up and re-finaricing of these properties. It is expected that the above-payment plus a portion of refinance proceeds will total $250,000.00, plus leasing commissions of about $75,000.00, for total compensation of $325,000.00” (emphasis added).
Both parties agree, as the language of the Post-Script *455indicates, that plaintiff was to receive payment once the properties showed a profit above defendants’ total cost basis. As defined in the Post-Script, total cost basis is, essentially, the money defendants spent purchasing, renovating, leasing and refinancing the buildings.
Eventually, Street transferred three of the four properties to three other single purpose entities so that a separate company owned each property (collectively with Street, the Owners). Defendant Owners commenced renovations to improve the properties and refinanced several times to pay for those renovations. The last refinancing was in 2006. By the end of 2008, when renovations were substantially complete, defendant Owners had invested nearly $2 million in the renovations. In 2010 and 2011, during the pendency of this action, defendants sold the properties for $5,734,776.50.
Plaintiff then commenced this action for, among other things, breach of contract, asserting that it never received any refinance proceeds even though defendants refinanced the properties several times. It also asserted a cause of action for breach of a brokerage agreement, alleging that defendants refused to allow it to provide the contracted-for brokerage services for the apartments in the buildings.
Defendants moved for summary judgment dismissing the complaint, arguing that the properties always operated at a loss and they could no longer refinance after 2008 because the downturn in the real estate market left negative equity in the properties. Defendants contend that, minus the initial acquisition and closing costs of $2,123,676.00, the renovation costs of $2,655,295.77, operating losses of $2,619,915.74 and net depreciation of $1,180,244.77, they suffered an aggregate loss during ownership of $483,866.24. In support of their motion, defendants submitted the testimony of their accountant, Warren Schneider. According to Schneider, the post-2006 financial documents indicate that the properties continued to operate at a loss until defendants sold them.
In opposition and in support of its cross motion, plaintiff submitted an affidavit from its expert, certified public accountant Barry Leon. In his affidavit, Leon states that the properties yielded cash-out refinancing proceeds of approximately $2 million in 2006 and that defendants had recouped all the monies they put into the properties by the end of 2006. Despite plaintiffs expert’s opinion, however, the financial documents in the record indicate that the properties operated at a loss for at least the years 2002, 2003, 2004, 2005 and 2006, at least when comparing rent rolls to operating expenses. Plaintiff concedes *456that in 2006, the properties incurred $861,755 in operating costs and received only $588,069 in rents.
Although neither party submitted the post-2006 financial documents, they certainly exist because the accountants for both parties relied on those documents in rendering their opinions. Given the differing opinions of the accountants, both based on financial documents that are not part of the record, there is a question of fact precluding an award of summary judgment to either party. The parties agree on the Post-Script agreement’s salient terms, i.e., that plaintiff was to receive $250,000 if defendants made enough money to recover their total cost basis. This means that plaintiff is entitled to refinancing proceeds only if, in fact, the investment yielded a profit. Thus, it is irrelevant that the agreement does not define the term “portion” or the means to calculate plaintiff’s portion. The money is either there or it is not. Because it is not clear whether the properties yielded a profit, the motion court properly denied summary judgment to both parties.
It follows from the foregoing that plaintiffs claims for unjust enrichment should have been dismissed. It is axiomatic that a claim for unjust enrichment cannot stand where there is a contract governing the same subject matter (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]).
I agree with the majority’s decision to the extent it dismissed plaintiff’s claims for brokerage fees. Plaintiff alleges that defendants thwarted its ability to earn commissions by refusing to allow plaintiff to perform brokerage services. Defendants contend that they stopped using plaintiff as a broker after receiving complaints. Even assuming the Post-Script constitutes a brokerage agreement, it lacks definite terms and therefore was terminable at will (see Rooney v Tyson, 91 NY2d 685, 689-692 [1998]). Moreover, plaintiff has not claimed that it procured any tenants for the properties without receiving a commission. Accordingly, the motion court should have granted summary judgment to defendants and dismissed the second cause of action for $75,000 in broker fees.
Finally, I would dismiss the claim against defendant Tahl. There is nothing in the record to indicate that Tahl intended to bind himself personally and plaintiff has not asserted allegations to pierce the corporate veil (see Matias v Mondo Props. LLC, 43 AD3d 367, 368 [1st Dept 2007]). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902864/ | Mercure, J.
Appeal (1) from an order of the Supreme Court (Swartwood, J.), entered December 16, 1986 in Tompkins County, which, inter alia, granted defendant Gloria Thompson’s motion for summary judgment dismissing the complaint and amended complaint against her, and (2) from the judgment entered thereon.
On April 29, 1985, plaintiff Theresa Kiernan (hereinafter plaintiff) was walking along the sidewalk directly in front of premises owned by defendant Gloria Thompson on the east side of South Albany Street in the City of Ithaca, Tompkins County. Plaintiffs allege that the cracked and broken sidewalk had been in a dangerous, defective and unsafe condition for a long period of time. The sidewalk’s deteriorated condition allegedly caused plaintiff to fall into or trip upon a jagged crack several inches wide and deep. When she landed on the ground and/or sidewalk, plaintiff sustained a fractured right elbow and right arm, bruises, contusions and other serious and permanent injuries.
Plaintiffs commenced this action against Thompson and defendant City of Ithaca, alleging that both defendants were negligent in failing to maintain the sidewalk in a safe condition. The city moved for summary judgment dismissing the claim against it upon the ground that it was not provided with prior written notice of the sidewalk defect, which motion was granted by Supreme Court. Upon appeal, this court reversed, holding that the proposed amended complaint asserted a cause of action based upon the affirmative negligence of the city in creating the unsafe condition of the sidewalk by removing a tree stump on December 7, 1982 and, accordingly, the failure to give the prior written notice mandated by local law did not require dismissal (see, Kiernan v Thompson, 134 AD2d 27).
Thompson moved for an order granting summary judgment dismissing the complaint as to her, and plaintiffs cross-moved for leave to amend the complaint so as to allege that the city’s removal of the same tree stump conferred a special benefit upon her. Supreme Court granted plaintiffs’ cross motion to amend the complaint and also granted Thompson’s motion for *958summary judgment dismissing the complaint as amended. This appeal ensued.
We affirm. It is well settled that an owner of land abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public a duty to keep the sidewalk in a safe condition (City of Rochester v Campbell, 123 NY 405; Lodato v Town of Oyster Bay, 68 AD2d 904; 4C Warren, Negligence in the New York Courts, Sidewalks, § 4, at 188 [3d ed]). Plaintiffs assert that Ithaca City Charter § 5.27 (2), which provides that landowners shall maintain sidewalks in a safe state of repair and free from defects, imposes liability upon Thompson. We disagree. In order for a statute, ordinance or municipal charter to impose tort liability upon abutting owners for injuries caused by their negligent conduct, the language thereof must not only charge the landowner with a duty but must also specifically state that if the landowner breaches such duty he will be liable to those who are injured for any defects in the sidewalk (Jacques v Maratskey, 41 AD2d 883; Beltzer v City of Long Beach, 24 Misc 2d 279, affd 15 AD2d 789; cf., Willis v Parker, 225 NY 159). No such language is contained in the subject charter.
Plaintiffs’ remaining argument, that the removal of a tree stump from the area in front of Thompson’s property some years prior to the subject accident conferred a special benefit upon the premises, is equally unavailing. Although the use of a sidewalk for a special purpose may impose liability upon an abutting owner (see, Colson v Wood Realty Co., 39 AD2d 511), and an owner may be liable where he fails to maintain in a reasonably safe condition a sidewalk which is constructed in a special manner for his benefit (Clifford v Dam, 81 NY 52), the removal of the stump herein conferred no special benefit. Before liability can be imposed, the sidewalk must be constructed in a special manner (see, e.g., Trustees of Vil. of Canandaigua v Foster, 156 NY 354 [grate in the sidewalk]; Smith v Barbaro, 63 AD2d 804 [valve stem of the water service]; Nickelsburg v City of New York, 263 App Div 625 [hoistway adjacent to apartment house with bars imbedded in sidewalk]). There is no allegation of any such construction here.
Inasmuch as there were no questions of fact, Supreme Court properly granted summary judgment dismissing the complaint against Thompson.
Order and judgment affirmed, with 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/5902865/ | Levine, J.
Appeal from a decision of the Workers’ Compensation Board, filed March 25, 1987.
Claimant was employed as a plumber and laborer by the Village of Pawling, Dutchess County, from September 1982 to May 1983. His work required him to spend time in water-filled trenches and, as a result, his lower extremities were often wet. At some point he developed sores on his left heel, which progressed to such an extent that amputation of his left foot was necessitated in June 1983.
Claimant filed a claim in April 1984 and Travelers Insurance Company, the village’s insurer prior to self-insurance by Dutchess County, filed a notice of controversy which stated that it was not the insurance carrier. Travelers also raised issues challenging claimant’s right to compensation. After initially misdirecting a notice of hearing dated July 6, 1984 to the wrong self-insurer, the correct self-insurer, Dutchess County (hereinafter the County), was identified in August 1984. The record contains a notice of hearing, dated December 29, 1984, addressed to the County. At a hearing held January 16, 1985, the County orally contested "accident, notice and causal relationship” and was directed to file a notice of controversy. Subsequently, a notice of hearing dated February 1, 1985 was sent to the County. At the hearing on February 20, 1985, the County filed its notice of controversy. The Workers’ Compensation Law Judge, however, held that the County had failed to timely file a notice of controversy and, accordingly, the employer was precluded from contesting the issues of employee-employer relationship, accident, and accident arising out of and in the course of employment, pursuant to Workers’ Compensation Law § 25 (2) (b). This decision was subsequently affirmed by the Workers’ Compensation Board. This appeal by the employer and the County ensued.
In its decision, the Board found that the County "failed to timely file a [notice of controversy] within 25 days of the date of mailing”, but does not specify which of the various notices it is relying upon. In our view, the Board’s determination is ambiguous and precludes judicial review. One possible interpretation is that the Board was referring to an August 1984 notice of index against the County which is noted in the Board’s review of the facts. The Board relied on the "examiner’s worksheets” as the basis for its finding that claimant’s *960case was properly indexed against the County in August 1984. The record on appeal, however, does not contain the examiner’s notes or the notice of index referred to by the Board; nor is there any evidence or testimony in the record to establish that a notice of index, if it actually existed, was ever mailed to the County. Administrative determinations cannot be sustained based on evidence dehors the record (cf., Matter of Kivo v Levitt, 67 AD2d 464, 467, affd 50 NY2d 1017). It is also possible that the Board was referring to the mailing of the December 1984 notice of hearing to the County as commencing the 25-day period in which to respond under Workers’ Compensation Law § 25 (2) (b). In light of this ambiguity in the Board’s decision, this matter must be remitted to the Board for clarification of the basis for its decision and further development of the record, if necessary.
Decision withheld, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902867/ | Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 12, 2011, which denied defendants’ motion for summary judgment dismissing the complaint, and denied plaintiffs cross motion for summary judgment as to the first, second and third causes of action, modified, on the law, to dismiss the first and second causes of action, and otherwise affirmed, without costs.
The written agreement upon which plaintiff seeks a success fee and certain real estate broker’s commissions is unenforceable as vague, since the agreement fails to set the price or compensation to be received by plaintiff. Nor does it provide for a means to calculate same (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91-92 [1991]). As such, the IAS court should have granted defendants summary judgment on the two breach of contract claims.
With regard to plaintiffs claim for unjust enrichment, it was properly permitted to proceed, as there was no enforceable agreement regarding the same subject matter (cf. IDT Corp. v *454Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]). Moreover, fact issues preclude dismissal as to defendants Joseph Tahl and Tahl Propp Equities, LLC, as both apparently dealt directly with plaintiff on this transaction, and both are alleged to have benefitted from the transaction (see Georgia Malone & Co., Inc. v Rieder, 86 AD3d 406 [2011]). Concur—Mazzarelli, J.P., Manzanet-Daniels and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902868/ | Moskowitz, J.,
dissents in part and concurs in part in a memorandum as follows: I dissent to the extent the majority (1) dismisses the breach of contract claims as vague and unenforceable; (2) permits the unjust enrichment claims to proceed; and (3) retains the claims against defendant Tahl individually. Although the agreement here is hardly a model of clarity, the parties do not dispute the meaning of its salient terms. Thus, I would not dismiss the breach of contract claims as vague and unenforceable. However, because the parties’ accountants disagree as to how to interpret the applicable financial documents and because the record is devoid of financial documents upon which the parties relied, summary judgment is not warranted. I would also dismiss the claims against defendant Tahl individually.
Plaintiff Magnum Real Estate Services, Inc. is a licensed real estate broker. On May 18, 2001, Magnum entered into a contract to purchase four mixed-use investment properties in Harlem for a purchase price of $1.9 million. In October 2001, Magnum assigned the contract of sale to 133-134-135 Street LLC (Street), a single-purpose limited liability company that defendants Joseph Tahl, Tahl-Propp Equities, and Tahl Propp Manhattan North Investors II, LLC allegedly control. In consideration for that assignment, Magnum received $85,000. The closing on Street’s purchase of the properties occurred on or about October 10, 2001. Plaintiff claims it was supposed to have received additional consideration for the assignment that the parties memorialized in a memorandum to “Sony” that Tahl drafted, dated November 16, 2001 (the Post-Script). The Post-Script states in relevant part: “The above payment of $85,000.00 is a partial payment. You also will be compensated with a portion of re-finance proceeds at closing of the re-financing above our total cost basis, including acquisition and renovation cost, upon the successful renovation, lease-up and re-finaricing of these properties. It is expected that the above-payment plus a portion of refinance proceeds will total $250,000.00, plus leasing commissions of about $75,000.00, for total compensation of $325,000.00” (emphasis added).
Both parties agree, as the language of the Post-Script *455indicates, that plaintiff was to receive payment once the properties showed a profit above defendants’ total cost basis. As defined in the Post-Script, total cost basis is, essentially, the money defendants spent purchasing, renovating, leasing and refinancing the buildings.
Eventually, Street transferred three of the four properties to three other single purpose entities so that a separate company owned each property (collectively with Street, the Owners). Defendant Owners commenced renovations to improve the properties and refinanced several times to pay for those renovations. The last refinancing was in 2006. By the end of 2008, when renovations were substantially complete, defendant Owners had invested nearly $2 million in the renovations. In 2010 and 2011, during the pendency of this action, defendants sold the properties for $5,734,776.50.
Plaintiff then commenced this action for, among other things, breach of contract, asserting that it never received any refinance proceeds even though defendants refinanced the properties several times. It also asserted a cause of action for breach of a brokerage agreement, alleging that defendants refused to allow it to provide the contracted-for brokerage services for the apartments in the buildings.
Defendants moved for summary judgment dismissing the complaint, arguing that the properties always operated at a loss and they could no longer refinance after 2008 because the downturn in the real estate market left negative equity in the properties. Defendants contend that, minus the initial acquisition and closing costs of $2,123,676.00, the renovation costs of $2,655,295.77, operating losses of $2,619,915.74 and net depreciation of $1,180,244.77, they suffered an aggregate loss during ownership of $483,866.24. In support of their motion, defendants submitted the testimony of their accountant, Warren Schneider. According to Schneider, the post-2006 financial documents indicate that the properties continued to operate at a loss until defendants sold them.
In opposition and in support of its cross motion, plaintiff submitted an affidavit from its expert, certified public accountant Barry Leon. In his affidavit, Leon states that the properties yielded cash-out refinancing proceeds of approximately $2 million in 2006 and that defendants had recouped all the monies they put into the properties by the end of 2006. Despite plaintiffs expert’s opinion, however, the financial documents in the record indicate that the properties operated at a loss for at least the years 2002, 2003, 2004, 2005 and 2006, at least when comparing rent rolls to operating expenses. Plaintiff concedes *456that in 2006, the properties incurred $861,755 in operating costs and received only $588,069 in rents.
Although neither party submitted the post-2006 financial documents, they certainly exist because the accountants for both parties relied on those documents in rendering their opinions. Given the differing opinions of the accountants, both based on financial documents that are not part of the record, there is a question of fact precluding an award of summary judgment to either party. The parties agree on the Post-Script agreement’s salient terms, i.e., that plaintiff was to receive $250,000 if defendants made enough money to recover their total cost basis. This means that plaintiff is entitled to refinancing proceeds only if, in fact, the investment yielded a profit. Thus, it is irrelevant that the agreement does not define the term “portion” or the means to calculate plaintiff’s portion. The money is either there or it is not. Because it is not clear whether the properties yielded a profit, the motion court properly denied summary judgment to both parties.
It follows from the foregoing that plaintiffs claims for unjust enrichment should have been dismissed. It is axiomatic that a claim for unjust enrichment cannot stand where there is a contract governing the same subject matter (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]).
I agree with the majority’s decision to the extent it dismissed plaintiff’s claims for brokerage fees. Plaintiff alleges that defendants thwarted its ability to earn commissions by refusing to allow plaintiff to perform brokerage services. Defendants contend that they stopped using plaintiff as a broker after receiving complaints. Even assuming the Post-Script constitutes a brokerage agreement, it lacks definite terms and therefore was terminable at will (see Rooney v Tyson, 91 NY2d 685, 689-692 [1998]). Moreover, plaintiff has not claimed that it procured any tenants for the properties without receiving a commission. Accordingly, the motion court should have granted summary judgment to defendants and dismissed the second cause of action for $75,000 in broker fees.
Finally, I would dismiss the claim against defendant Tahl. There is nothing in the record to indicate that Tahl intended to bind himself personally and plaintiff has not asserted allegations to pierce the corporate veil (see Matias v Mondo Props. LLC, 43 AD3d 367, 368 [1st Dept 2007]). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902869/ | Kane, J. P.
Appeal from a judgment of the Supreme Court (Travers, J.), entered September 22, 1987 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Health denying certain retroactive adjustments in petitioner’s Medicaid reimbursement rates.
Petitioner, a duly licensed skilled nursing facility whose residents include medically indigent elderly citizens, participated in the Medicaid program (42 USC § 1396 et seq.). It is respondents’ responsibility to compute reimbursement rates for the sums expended by facilities, such as petitioner, for the care of such elderly patients (Public Health Law § 2807 [3]). Subsequent to the Department of Health’s (hereinafter DOH) computation of petitioner’s Medicaid reimbursement rates for the years 1983 and 1984, petitioner filed two administrative appeals, one for each year, seeking an upward revision of these rates due to certain labor cost increases it had incurred by reason of a new collective bargaining agreement that it had negotiated for these two years. These appeals were decided together by DOH and resulted in a determination by DOH stating that it had made adjustments "to provide [petitioner] with the necessary revenue to cover the contract increases”. No further appeal of this determination was sought by petitioner.
Petitioner then filed another separate appeal, this time seeking an increase in its Medicaid reimbursement rates for the years 1982 through 1984 to include pension benefits that it had extended to its nonunion employees commencing in 1982 and extended for each of these years. Prior to 1982, these employees had not received such benefits. It is this appeal that is the subject of the instant dispute between the parties. As requested, petitioner provided DOH with, inter alia, information as to the total costs it incurred in funding these pensions for the 1982 to 1984 periods. Thereafter, DOH denied this appeal on the grounds that it had already increased petitioner’s rate in the other two appeals and any additional increase would exceed maximum reimbursement levels. As a result of this determination, petitioner filed a second-stage hearing appeal which was denied on the ground that the initial determination was "based on policy and methodology used throughout the industry” and "[t]herefore, no issue of fact is raised warranting a hearing”. Petitioner then commenced the *964instant CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition and the current appeal ensued.
Petitioner claims that DOH denied it reimbursement for the nonunion employee pension benefits based on a DOH policy that should have been published as a rule or regulation in accordance with the requirements of NY Constitution, article IV, § 8 (see, Executive Law §§ 101-a, 102; State Administrative Procedure Act § 202). We reject this claim. Unlike the situation in Matter of Sunrise Manor Nursing Home v Axelrod (135 AD2d 293), the denial of petitioner’s appeal was not based on a fixed, general and rigid policy that failed to consider the particular facts and circumstances of petitioner’s case (see, Matter of Roman Catholic Diocese v New York State Dept. of Health, 66 NY2d 948). In this case, DOH did consider the nonunion pension costs and based its denial on the fact that inclusion of such costs would increase the reimbursement rate for petitioner above allowable cost ceilings. Thus, DOH’s decision was not based, as it was in Sunrise, on a fixed, unqualified policy adopted by DOH (cf., Matter of Fox Mem. Hosp. v Axelrod, 103 AD2d 509) but, rather, it was based on guidelines established for case-by-case analysis of the facts (cf., Long Is. Coll. Hosp. v Whalen, 68 AD2d 274, 276). As Supreme Court noted, the appeal was denied due to DOH’s consideration of the additional cost factors involved and not by arbitrarily ignoring such costs. Additionally, while the denial of the second-stage appeal did state that it was based on policy and methodology used throughout the industry, there is no indication that the policy referred to was any other than that of denying appeals that push rates beyond maximum allowable levels. Therefore, Supreme Court’s decision should be affirmed.*
We have reviewed petitioner’s remaining contentions and find them to be without merit. DOH’s denial was not arbitrary or capricious and was based on a review of the merits of petitioner’s case. Petitioner makes no argument that DOH incorrectly determined that it had reached maximum allowable reimbursement levels.
*965Judgment affirmed, without costs. Kane, J. P., Weiss, Yesawich, Jr., and Harvey, JJ., concur.
Supreme Court cited People v Ditniak (28 NY2d 74) to support its further conclusion that, since 10 NYCRR 86-2.12 (b) makes adjustments to reimbursement rates a matter solely within respondent Commissioner of Health’s discretion, the Commissioner is not required to publish policies which form the basis for discretionary determinations. For the reasons set forth in Matter of Sunrise Manor Nursing Home v Axelrod (135 AD2d 293) we reject this conclusion. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902870/ | Levine, J.
Appeal from an order of the Family Court of Delaware County (Estes, J.), entered February 13, 1987, which denied petitioner’s motion to vacate or modify prior orders dismissing her paternity petitions.
In March 1985, a paternity proceeding was commenced on behalf of petitioner by the Delaware County Department of Social Services alleging that respondent was the father of petitioner’s child, born February 9, 1981. A fact-finding hearing was scheduled for February 10, 1986. When petitioner failed to appear on that date, Family Court granted respondent’s request that the case be dismissed, adding, sua sponte, that the dismissal be with prejudice.
Thereafter, in November 1986, a second paternity petition was filed with Family Court, this time by petitioner herself, again alleging that respondent was the father of her child. The parties were scheduled to appear in court for the first time on January 6, 1987. It is evident from the record that, on January 5, 1987, petitioner retained counsel to represent her in this matter and that counsel contacted Family Court by telephone and was informed that only petitioner needed to appear in court the following day. On January 6, 1987, with both parties present without counsel, Family Court summarily dismissed the petition on the ground that it was barred by res judicata since the earlier petition had been dismissed "with prejudice”. Petitioner then moved to vacate the second order of dismissal which had been rendered without notice or, alternatively, to modify or vacate the first order of dismissal on the ground that it should not have been "with prejudice”. Although the motion was unopposed, it was denied by Family Court. Petitioner appeals from the order denying her motion.
To determine whether Family Court properly denied the motion to vacate the order dismissing the second petition, we must first decide whether Family Court correctly gave res judicata effect to the dismissal of the first petition. A court has discretion to specify whether its order dismissing a claim is to have res judicata effect (see, CPLR 5013, 3216 [a]). Even where a dismissal is specifically "on the merits” or "with prejudice”, the circumstances must warrant barring the litigant from further pursuit of his claim in order for those phrases to be given preclusive effect (see, Art Guild Gallery v Charmack, 107 *966AD2d 777; see also, 5 Weinstein-Korn-Miller, NY Civ Prac lili 5011.11, 5013.02).
In the instant case, it is undisputed that the dismissal of the first petition was based at least in part, if not solely, on petitioner’s failure to appear in court on the date scheduled for the fact-finding hearing. A dismissal based upon a party’s failure to appear is not on the merits (see, Greenberg v De Hart, 4 NY2d 511, 516-517). Family Court states, however, in its decision on petitioner’s motion to vacate, that its order dismissing the first petition was:
"not based merely upon non appearance [sic] of the petitioner. The Court had before it the results of a human leucocyte antigen test certified pursuant to CPLR 4518 (c) which had been requested by the respondent * * *
"The Court noted that the human leucocyte antigen test, in the absence of any other evidence from the petitioner, was insufficient by itself to establish a prima facie case.”
Family Court, however, never mentioned the human leucocyte antigen test in connection with its decision to dismiss the first petition or in the order which followed. In any event, even assuming that Family Court could properly consider the test results, which had never been offered into evidence, and base its dismissal on petitioner’s failure to establish a prima facie case, it was nonetheless an abuse of discretion to dismiss the petition with prejudice since it appeared that the necessary proof was available if a new proceeding was to be commenced (see, Giglio v Haber, 19 AD2d 793).
Moreover, although a court may dismiss a claim with prejudice where it finds that exceptional circumstances or an unreasonable neglect to prosecute merits this extreme sanction (see, Jones v Maphey, 50 NY2d 971, 973; Mitchell v Kiamesha Concord, 94 AD2d 914, lv denied 60 NY2d 558), petitioner’s failure to appear in court on February 10, 1986 did not justify barring petitioner from further attempts to establish respondent’s paternity (see, Art Guild Gallery v Charmack, supra). Accordingly, it was error for Family Court to deny petitioner’s motion to vacate the order dismissing the second petition.
Order modified, on the law, without costs, by reversing so much thereof as denied the motion to vacate the order dated January 8, 1987; motion granted to that extent and petition dated November 12, 1986 reinstated; and, as so modified, *967affirmed. Kane, J. P., Casey, Levine, Harvey and Mercare, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902955/ | Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered on August 6, 1986, unanimously affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5). No opinion. Concur — Sullivan, J. P., Ross, Asch, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902956/ | Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered on May 7, 1986, unanimously affirmed. Motion by appellant for leave to enlarge the record on appeal to include certain exhibits denied. No opinion. Concur — Sullivan, J. P., Ross, Asch, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902957/ | Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered October 30, 1986, which denied the motion of the defendant-appellant Allan S. Gordon to set aside the jury verdict on the third cause of action awarding plaintiff $60,000 for emotional distress, and the judgment entered on December 15, 1986, awarding plaintiff $60,000, plus costs, is unanimously reversed on the law and the facts, the motion granted, the judgment vacated and the third cause of action dismissed, without costs and without disbursements.
This is a negligence action which arose when a limousine door was opened by defendant Allan Gordon and struck the plaintiff who was riding on a bicycle. The facts are as follows. On June 15, 1982, about 6:30 p.m., plaintiff was riding her bicycle north on Park Avenue in New York County. She was riding between the cars which were parked on her right-hand side and cars which were proceeding slowly in the lane next to the parked cars. As she approached 74th Street, a limousine owned by defendant Edward S. Gordon Co., Inc. stopped to discharge a passenger. When the right back door was opened *269by defendant Allan Gordon, plaintiff was struck and fell to the street. Defendants Allan Gordon and John Brown, who was driving the limousine, and Edward Gordon, who is the brother of Allan Gordon and who was a passenger in the limousine, all testified that plaintiff stated she was all right and, after a few minutes, the three left the scene. Plaintiff testified that she told them she was not all right but also testified that she "might” have stated that she was all right. Plaintiff testified she rested in an apartment house for a few minutes and then proceeded toward Lenox Hill Hospital. On her way to the hospital she flagged down a police car and told them about the accident. At the hospital, she complained of pain in her head and leg. After examination and X rays, she was released. She testified that she had headaches and pain in her leg for months following the accident. She testified further that at the time of the trial she had a permanent dent in her left leg and a bulge underneath the dent.
At the trial the jury answered "no” to the question, "Has the plaintiff sustained an injury which is a significant disfigurement?” The jury also answered "No” to the question, "Was Mr. Brown (the driver) negligent in his conduct toward Ms. Kreuzer after she fell from her bicycle?” The jury answered "Yes” to the question, "Was Mr. Allan Gordan negligent in his conduct toward Ms. Kreuzer after she fell from her bicycle?” The jury also awarded plaintiff $60,000 for "emotional distress.” The specific question on damages read, "Set forth the damages, if any, which you find plaintiff is entitled for emotional distress”?
Once the jury found that plaintiff had not suffered a "serious injury”, there was no right of recovery for noneconomic loss. Insurance Law § 5104 (a) states, "Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this State, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.” Concur — Murphy, P. J., Sandler, Sullivan and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902958/ | Motion and cross motions for leave to appeal to Court of Appeals granted, and defendant New York Infirmary’s cross motion denied insofar as it seeks reargument. Concur — Kupferman, J. P., Sullivan, Carro, Milonas and Rosenberger, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6495524/ | NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2022
09:49 AM
Dkt. 47 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
SHECKY CABULIZAN, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
SOUTH KOHALA DIVISION
(CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Defendant-Appellant Shecky Cabulizan (Cabulizan)
appeals from the District Court of the Third Circuit, South
Kohala Division's (district court) October 20, 2020 Judgment and
Notice of Entry of Judgment (Judgment),1 convicting him of
Negligent Failure to Control a Dangerous Dog, in violation of
Hawai#i County Code (HCC) § 4-31(a)(2) (2016).2
1
The Honorable Mahilani E.K. Hiatt presided.
2
HCC § 4-31(a)(2) provides:
(a) A dog owner commits the offense of negligent failure
to control a dangerous dog, if the person negligently
fails to take reasonable measures to prevent the dog
from attacking, without provocation, a person or
animal and such attack results in:
. . . .
(2) Bodily injury to a person.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Cabulizan does not challenge the sufficiency
of the evidence as to the elements set forth in HCC § 4-31(a)(2),
but challenges the sufficiency of the evidence as to his state of
mind - that he acted negligently. He asserts there was no
evidence that he "was aware of a substantial and unjustifiable
risk that Mauka was a dangerous dog as defined by HCC § 431-1(g)"
or had bitten anyone else before, and that the complaining
witness failed to explain what she meant when she said she
previously saw the dog act "aggressively."
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we affirm the
Judgment for the following reasons.
During trial, the complaining witness testified that
she was walking at the end of her driveway turning onto the
street when three dogs from Cabulizan's property charged towards
her. They surrounded her and barked aggressively. When she
turned to leave, one of the dogs bit the back of her left thigh,
leaving two puncture wounds. The complaining witness further
testified that she saw these dogs act aggressively before and has
seen them loose in the area "too many [times] to count."
Conversely, Cabulizan testified that his dogs never attacked
anyone, were not aggressive, and he never received complaints
that they were loose.
In a sufficiency of the evidence challenge, we consider
the evidence in the strongest light for the prosecution; "[t]he
test on appeal is not whether guilt is established beyond a
reasonable doubt, but whether there was substantial evidence to
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
support the conclusion of the trier of fact." State v. Matavale,
115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007) (citation
omitted). "'Substantial evidence' as to every material element
of the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion." Id. at 158, 166
P.3d at 331 (citation and brackets omitted).
"A dog owner commits the offense of negligent failure
to control a dangerous dog, if the person negligently fails to
take reasonable measures to prevent the dog from attacking,
without provocation, a person or animal and such attack results
in: . . . [b]odily injury to a person." HCC § 4-31(a)(2). A
dangerous dog is one that, "without provocation, attacks a person
or animal," and attack means "aggressive physical contact with a
person or animal initiated by the dog which may include, but is
not limited to, the dog jumping on, leaping at, or biting a
person or animal." HCC § 4-1(d) and (g) (2016).
In addition, "reasonable measures to prevent the dog
from attacking" includes measures required "to prevent the dog
from becoming a stray[.]" HCC § 4-31(b)(1) (2016). A "stray"
is, inter alia, "[a]ny dog on a public street, on public or
private school grounds, or in any other public place, except when
under the control of the owner by leash, cord, chain or other
similar means of physical restraint[.]" HCC § 4-1(r)(3) (2016).
Finally, as to state of mind, HCC provides that
"negligently" means the same as it does in Hawaii Revised
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Statutes (HRS) § 702–206 (2014).3 HCC § 4-1(k) (2016).
Negligence, however, "does not involve a state of awareness on
the part of the defendant," but rather, "the inadvertent creation
by the defendant of a risk of which the defendant would have been
aware had the defendant not deviated grossly from the standard of
care that a law-abiding person would have observed in the same
situation." HRS § 702-206 cmt.
In State v. MacDonald, 120 Hawai#i 48, 200 P.3d 417,
No. 28793, 2009 WL 245436 at *5 (App. Jan. 30, 2009) (mem.), this
court considered two separate biting incidents involving the same
dog, and held that there was no substantial evidence that the
owner was negligent as to the first incident because the dog was
in a place where it was allowed to be off a leash, the dog had
never bitten anybody before, and the biting incidents "took place
suddenly, unexpectedly, and in close succession." The subsequent
incident occurred when the defendant was walking the dog on a
four-foot leash and it turned and bit a pedestrian. Id. The
3
HRS § 702–206(4) defines "negligently" as follows:
(a) A person acts negligently with respect to his conduct
when he should be aware of a substantial and
unjustifiable risk taken that the person's conduct is
of the specified nature.
(b) A person acts negligently with respect to attendant
circumstances when he should be aware of a substantial
and unjustifiable risk that such circumstances exist.
(c) A person acts negligently with respect to a result of
his conduct when he should be aware of a substantial
and unjustifiable risk that his conduct will cause
such a result.
(d) A risk is substantial and unjustifiable within the
meaning of this subsection if the person's failure to
perceive it, considering the nature and purpose of his
conduct and the circumstances known to him, involves a
gross deviation from the standard of care that a
law-abiding person would observe in the same
situation.
4
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court held that the owner was negligent for failing to take
reasonable measures to prevent a subsequent biting incident, such
as muzzling the dog. Id. at *6. We further noted that the
ordinance in that case, Revised Ordinances of Honolulu (ROH)
§ 7–7.2,4 which is nearly identical to HCC § 4-31(a)(2), does not
require proof that the dog had previously bitten a person. Id.
at *5.
In State v. Hironaka, 144 Hawai#i 391, 442 P.3d 454,
No. CAAP-XX-XXXXXXX, 2019 WL 2366370 at *3 (App. June 5, 2019)
(SDO), this court held that there was no substantial evidence to
support a finding of negligence because "[t]here was no evidence
that [the dog] had previously run out of the house unrestrained,"
or that the owner "was, or should have been, aware of violent
tendencies or other circumstances that would have caused a
law-abiding person to take additional steps to restrain their
dog."
Like the second incident in MacDonald, and unlike the
circumstances in Hironaka, there was evidence that Cabulizan's
dogs escaped his property unrestrained on numerous occasions,
which would have caused a law-abiding person to take steps to
prevent the dog from becoming a stray. Indeed, testimony that
the dogs have escaped "too many [times] to count," taken with the
fact that three dogs escaped at the same time, suggests that
4
ROH § 7-7.2(a) (1990 & Supp. No. 12, 2-08) provides, in relevant
part:
A dog owner commits the offense of negligent failure to
control a dangerous dog, if the owner negligently fails to
take reasonable measures to prevent the dog from attacking,
without provocation, a person or animal and such attack
results in: (1) the maiming or causing of serious injury to
or the destruction of an animal or (2) bodily injury to a
person other than the owner.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Cabulizan's measures to keep the dogs from escaping were
inadequate.
Based on the numerous escapes, the district court could
reasonably infer that Cabulizan should have been aware there was
a substantial and unjustifiable risk that his dogs, while stray,
could jump on, leap on, or bite a person encountered. See State
v. Batson, 73 Haw. 236, 254, 831 P.2d 924, 934 (1992) (explaining
that "given the difficulty of proving the requisite state of mind
by direct evidence in criminal cases, we have consistently held
that proof by circumstantial evidence and reasonable inferences
arising from circumstances surrounding the defendant's conduct is
sufficient") (cleaned up). Thus, considered in the strongest
light for the prosecution, we hold that there was sufficient
evidence of Cabulizan's negligent state of mind to support the
conviction. Matavale, 115 Hawai#i at 157-58, 166 P.3d at 330-31.
THEREFORE, we affirm the district court's October 20,
2020 Judgment and Notice of Entry of Judgment.
DATED: Honolulu, Hawai#i, June 27, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
William H. Jameson, Jr.,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Stephen L. Frye, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Hawai#i,
for Plaintiff-Appellee.
6 | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902871/ | OPINION OF THE COURT
Per Curiam.
Respondent was admitted to practice by the Second Judicial Department on December 18, 1967.
On June 8, 1987, respondent was convicted, after trial, in the United States District Court for the Eastern District of New York, of multiple counts of embezzlement, in violation of 18 USC § 664; obstruction of justice, in violation of 18 USC § 1503; solicitation and receipt of kickbacks, while serving as counsel to an employee benefit plan, with intent to be influenced, in violation of 18 USC § 1954; and of engaging in a racketeering conspiracy, in violation of 18 USC § 1962 (d). Subsequently, on July 21, 1987, respondent was sentenced to imprisonment for a term of six years on count 1, five years on counts 2 and 3, and, three years on each of counts 4 through 9, and 12 through 15, to run concurrently with each count, and concurrently with count 1. By order, filed December 15, 1987, the United States Court of Appeals for the Second Circuit unanimously affirmed respondent’s conviction.
Pursuant to Judiciary Law § 90 (4) (b), a certified copy of the respondent’s Federal conviction has been presented to this court.
Based on the Federal conviction, the Departmental Disciplinary Committee (DDC) has moved, by petition, for an order striking respondent’s name from the roll of attorneys (Judiciary Law § 90 [4] [b]), upon the ground respondent was disbarred, as a result of his conviction of a felony, as defined by Judiciary Law § 90 (4) (e).
Our examination of the certified copy of the conviction, and, of the Federal indictment underlying it, indicates respondent was found guilty, during the period he admitted he maintained an office to practice law in this Department, of the *3Federal felony of embezzling $15,800 from the Allied Security Health and Welfare Fund, which was an employee benefit plan (see, count 9 of the Federal indictment).
We find this Federal felony, of which respondent was convicted, is essentially similar to the New York felony described in section 155.05 (1) and (2) (a) and section 155.35 of the Penal Law (see, Matter of Cahn v Joint Bar Assn. Grievance Comm., 52 NY2d 479, 482 [1981]; Matter of Margiotta, 60 NY2d 147, 150-151 [1983]).
Therefore, pursuant to subdivision (4) of section 90 of the Judiciary Law, upon his conviction of a felony, the respondent ceased to be an attorney and counselor-at-law in the State of New York.
Accordingly, respondent is disbarred, and the clerk of this court is directed to strike the respondent’s name from the roll of attorneys and counselors-at-law forthwith.
Kupferman, J. P., Ross, Carro, Kassal and Ellerin, JJ., concur.
Respondent’s name struck from the roll of attorneys and counselors-at-law in the State of New York, effective June 21, 1988. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902872/ | *457Judgment, Supreme Court, New York County (Geoffrey D. Wright, J), entered October 6, 2011, confirming an arbitral award, unanimously affirmed, with costs.
Respondents Everlast World’s Boxing Headquarters Corp. and Everlast Worldwide, Inc. (Everlast) did not default by failing to timely answer the petition or by moving to vacate the arbitral award instead of filing a cross petition to dismiss (see CPLR 404, 7502 [a] [iii]). Indeed, Everlast’s motion to vacate did not prejudice any substantial right belonging to petitioner (see CPLR 2001).
The arbitrators committed no misconduct (see CPLR 7511 [b] [1] [i]) when they did not require petitioner to disclose its representation agreements with its other licensors. Everlast failed to show by clear and convincing evidence that those agreements were necessary to prove their defense (Financial Clearing & Servs. Corp. v Katz, 172 AD2d 290 [1st Dept 1991]).
The arbitrators did not exceed their power (see CPLR 7511 [b] [1] [iii]) by affording the word “termination” a different construction from the one that Everlast urged. To be sure, even by common usage, the words “termination” and “expiration” are not generally synonymous. Rather, the word “termination” connotes severance of a relationship before the natural expiration of a term certain, while the word “expiration” connotes an ending occurring upon the passage of time. Courts have both tacitly and explicitly accepted these constructions (see Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477, 480-481 [1st Dept 2011] [court draws a distinction between “natural expiration of the term of the agreement,” on the one hand, and termination under notice of cancellation or breach, on the other]; see also Matter of Paul, 95 AD3d 1647, 1648 [3d Dept 2012] [referring to “expiration” of two-year period while referring to “termination” as a specific event contingent on court approval]; accord In re Turner, 326 BR 563, 575 [WD Pa 2005]; In re Morgan, 181 BR 579, 584 [ND Ala 1994]; Piedmont Interstate Fair Assn, v City of Spartanburg, 274 SC 462, 465-466, 264 SE2d 926, 927 [1980]).
Moreover, reference to paragraph VI (3) (e)—the only paragraph that the parties asked the arbitrators to interpret— suggests that the parties did not consider the two words to be synonymous. Specifically, in that paragraph, the parties’ provide that “in the event of termination of this Agreement,” petitioner would be entitled to certain fees after the termination. However, in paragraph IV the agreement states that it was to expire on *458December 31, 2004 at the latest, unless one of the parties terminated it earlier upon the occurrence of certain enumerated events. Thus, there existed no uncertainty as to the date for the expiration of the agreement. If the parties understood “termination” to be synonymous with “expiration,” they would have had no need to use the conditional phrase “in the event of termination,” as the agreement was already set to expire automatically on a predetermined date. Therefore, the arbitrators’ construction was not irrational and, despite Everlast’s assertions otherwise, did not effectively rewrite the parties’ agreement (see Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383 [I960]).
Everlast argues that no evidence supports the arbitrators’ interpretation of the parties’ agreement. However, this argument is unavailing, because “[mjanifest disregard of the facts is not a permissible ground for vacatur of an award” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 483 [2006], cert dismissed 548 US 940 [2006]; see also e.g. Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, 125 [2010]). At any rate, the record does contain evidence supporting the arbitrators’ decision.
We have considered the parties’ remaining contentions and find that they are unavailing. Concur—Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902874/ | Sandler, J. (dissenting).
In my opinion, subdivision (14) of CPL 330.20 (the Insanity Defense Reform Act of 1980) clearly authorized the proceeding that resulted in the hearing court’s finding that the defendant suffered from a dangerous mental disorder, as that term was defined in CPL 330.20 (1) (c)—a finding compellingly supported by the evidence and that mandated the issuance of the recommitment order here challenged.
Assuming that there were some ambiguity in the language of the statute on the issue presented—and I believe that such an ambiguity can be found only by a resolute refusal to apply normal rules of statutory construction, starting with the plain meaning rule—the legislative history makes it clear beyond any reasonable dispute that subdivision (14) was intended to apply under the circumstances presented. It is rare that a court is confronted with legislative history as clear and precise as that disclosed here as to the intent of the Legislature on the very issue before it.
The issue with which we are concerned has its genesis in events that occurred on May 10, 1984. Defendant’s mother, claiming that he had beaten her and had threatened to kill her, called the police for protection. After the police arrived, defendant, armed with a baseball bat, injured two of them; one sustained a fracture of the hand, the other bruises on the arm. Defendant was arrested, taken into custody and charged with second degree assault. After arraignment, he was released to receive psychiatric treatment.
Because it is so unusually helpful in providing a realistic understanding of the kinds of problems to which the relevant parts of the statute were addressed, it is appropriate to set *17forth in some detail aspects of the defendant’s psychiatric history.
At the time of the incident resulting in his arrest, the defendant was receiving treatment from a psychiatrist at the William Allison White Institute. By September 1984, defendant became disturbed by auditory hallucinations commanding him to commit suicide and other violent acts. He applied for admission to Roosevelt Hospital where he was treated as an inpatient for about two months. He was discharged for follow-up treatment as an outpatient, but only attended sporadically. Eventually he discontinued all treatment and medication. Thereafter, he became increasingly disturbed mentally, suffering threatening and recurring hallucinations. On January 30, 1985, he sought treatment at Mount Sinai Hospital and was admitted as an inpatient.
In April 1985, the defendant was discharged as an inpatient and transferred to a special outpatient program. This program, characterized as an "Intensive Treatment Program”, permitted him to live in an apartment facility maintained by Mount Sinai while receiving psychiatric treatment. He was supervised on a daily basis, including weekends, in the residence as well as at treatment sessions.
It was during the period that he was in the Mount Sinai program that, on September 19, 1985, defendant, pursuant to CPL 220.15, was permitted to plead not responsible by reason of mental disease or defect to assault in the second degree. An initial hearing was held pursuant to CPL 330.20 (6) to determine whether defendant was mentally ill and whether he was suffering from a dangerous mental disorder. On November 21, 1985, the trial court determined, in accordance with recommendations set forth in psychiatric reports, that defendant presently did not suffer from a dangerous mental disorder and was not mentally ill, and pursuant to CPL 330.20 (7) released him subject to an order of conditions.
What becomes apparent from an examination of the five psychiatric evaluations received by the hearing court in connection with the acceptance of the defendant’s plea and the subsequent determination at the postverdict hearing, is that all of the examiners, including the examiner whose services were specifically requested by defendant’s counsel, were in agreement that defendant in fact suffered from a significant chronic mental illness. All agreed that he suffered from paranoid schizophrenia. It is equally apparent from the several *18reports that the examiners, although finding the defendant not to be dangerous to himself or others at the time of the examinations, recognized that the character of his illness presented a potential for violent behavior in the future.
The reason for the recommendation of the examiners to the court, adopted by the court, that the defendant be found not to suffer from a dangerous mental disorder and not to be mentally ill but that he be released on an order of conditions, may be found in the distinctive aspects of the definition of mental illness in CPL 330.20 (1) (d). That paragraph provides, in relevant part, as follows: " 'Mentally ill’ means that a defendant currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of the state office of mental health, is essential to such defendant’s welfare and that his judgment is so impaired that he is unable to understand the need for such care and treatment”.
At the time of the several examinations, and at the time of the trial court’s order, defendant was an apparently willing participant in a highly regarded residence psychiatric program of Mount Sinai Hospital. His participation in that program clearly tended to establish that he was not "unable to understand the need for such care and treatment”. Even more important, the psychiatric program in which defendant was participating at Mount Sinai was highly regarded by the examiners and believed to be an appropriate program for his condition. In any event, it is clear that it was the judgment of the examiners, understandably accepted by the court, that it was not "essential” to the defendant’s welfare to commit him to a State institution.
It is a radical distortion of the reality of these events to conclude from the nature of the court’s findings that the court did not believe the defendant’s mental condition to be a matter of ongoing urgent concern. Quite the contrary. The record is clear that both the examiners and the court understood that the defendant suffered from a major chronic mental illness, and one from which he would continue to suffer for some time to come. In accordance with this understanding, an order of conditions required defendant to continue to receive outpatient treatment at Mount Sinai Hospital, to live in the hospital’s supervised residence, to take the prescribed psychotropic medication, and to attend therapy sessions and group activities. In addition, the order authorized immediate hospitalization in the event defendant’s condition deteriorated.
*19Defendant remained in the Mount Sinai program, but his condition worsened. On February 12, 1986, he was admitted as an inpatient and remained hospitalized until April 19, 1986, except for a short period. In April 1986 his treatment team, faced with defendant’s deteriorating mental condition even while hospitalized, concluded that a transfer to a secure facility was necessary.
Defendant apparently discovered that such a transfer was impending, and on April 12, 1986, with his mother’s assistance, eloped from the hospital. Shortly thereafter, while residing with his mother, defendant became acutely suicidal. His mother brought him to St. Luke’s Hospital, where he was refused admission. Several days later, on April 23, 1986, he was admitted to St. Vincent’s Hospital. In the course of that admission he assaulted a doctor.
On April 24, 1986, the District Attorney applied for an examination order temporarily transferring defendant to a secure facility for evaluation, an application made with the consent both of the defense attorney assigned to the original criminal action and the New York State Office of Mental Health. On the same date an order was issued directing an examination of defendant to determine his current mental condition. Following an evidentiary hearing, the trial court concluded that the defendant was currently suffering from a dangerous mental disorder and issued a recommitment order placing defendant in a secure facility for six months, the order here sought to be vacated.
Turning to the statutory issue that divides the court, it is clear that the purpose of the Insanity Defense Reform Act of 1980 was to "better ensure the protection of the public from future dangerous acts of individuals found not responsible, while safeguarding the rights of such individuals.” (1980 McKinney’s Session Laws of NY, at 1880). Central to the statute is the requirement that a defendant found not responsible for a criminal act by reason of mental disease or defect be examined by the Department of Mental Health to determine his present mental condition, and a timely hearing thereafter held to determine the defendant’s present mental condition.
The statute authorizes three possible findings following the mandated hearing, and sets forth three different procedures, or, alternative "tracks”, to apply to each of the possible findings. The possible findings are: (1) that the defendant has *20a "dangerous mental disorder”, (2) that the defendant does not have a dangerous mental disorder but is mentally ill, and (3) that the defendant does not have a dangerous mental disorder and is not mentally ill.
CPL 330.20 (6) provides: "If the court finds that the defendant has a dangerous mental disorder, it must issue a commitment order.”
Subdivision (7) is addressed to the two alternative findings described above, one of which gives rise to the issue with which we are concerned: "Initial hearing civil commitment and order of conditions. If, at the conclusion of the initial hearing conducted pursuant to subdivision six of this section, the court finds that the defendant is mentally ill but does not have a dangerous mental disorder, the provisions of articles nine or fifteen of the mental hygiene law shall apply at that stage of the proceedings and at all subsequent proceedings. Having found that the defendant is mentally ill, the court must issue an order of conditions and an order committing the defendant to the custody of the commissioner. The latter order shall be deemed an order made pursuant to the mental hygiene law and not pursuant to this section, and further retention, conditional release or discharge of such defendant shall be in accordance with the provisions of the mental hygiene law. If, at the conclusion of the initial hearing, the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, the court must discharge the defendant either unconditionally or subject to an order of conditions.”
Notably, the first appearance in a substantive part of the statute of the phrase "order of conditions” occurs in subdivision (7), where the court was required to issue such an order upon a finding that the defendant is mentally ill but does not have a dangerous mental disorder, and the court was given the option of issuing such an order on a finding that the defendant does not have a dangerous mental disorder and is not mentally ill. CPL 330.20 (1) (o) defines "order of conditions” as follows: "[A]n order directing a defendant to comply with this prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is in custody of the commissioner, not to leave the facility without authorization. The order shall be valid for five years from the date of its issuance, except that, for good cause shown, the court may extend the period for an additional five years.” Significantly, *21the term "order of conditions” was introduced into the law in CPL 330.20, was plainly designed as an order to be availed of in furtherance of the purposes of that statute, and was given legal significance in CPL 330.20 in a subdivision (14) proceeding, and only in a subdivision (14) proceeding. The Mental Hygiene Law contains no reference to an order of conditions, and does not disclose the slightest basis for the conclusion that the issuance of an order of conditions when required or authorized in CPL 330.20 has any relevance to a proceeding under the Mental Hygiene Law, or serves any function whatever in connection with such a proceeding. It is surely untenable to suppose that the Legislature intended an order of conditions issued under subdivision (7) to be governed by a law that contains no reference to such an order and assigns no function to it. The untenability of this thesis is conclusively established by the explicit language of the subdivision which, having provided that the court, on a finding that the defendant is mentally ill, "must issue an order of conditions and an order committing the defendant to the custody of the commissioner”, went on to say that "[t]he latter order shall be deemed an order made pursuant to the mental hygiene law and not pursuant to this section”, and includes no such comment with respect to the order of conditions.
Because of the central importance of the order of conditions to the issue with which we are concerned, it may be helpful to note briefly the varying references to such an order that appear in subdivisions of CPL 330.20 following subdivision (7) and leading up to subdivision (14).
Subdivision (8) is primarily concerned with the responsibilities of the Commissioner with whom a defendant is in custody pursuant to a commitment order to insure a hearing prior to the expiration of the commitment order at which the defendant’s current mental condition may be reevaluated. This subdivision provides for three alternative findings essentially the same as those described earlier, with one limited, though interesting, exception. If the court finds on the new hearing that the defendant does not have a dangerous mental disorder or is not mentally ill, it must issue a release order and an order of conditions. This is to be distinguished from the provision in subdivision (7) which provides that with regard to such a finding after the first postverdict examination, the court has the discretion as to whether to issue an order of conditions.
The term is used in a comparable way in subdivision (9) *22involving a hearing with regard to a defendant in custody pursuant to a first retention order.
Subdivision (11) regulates the circumstances under which a defendant in custody pursuant to a retention order or a recommitment order may be transferred from a secure to a nonsecure facility upon a finding that the defendant no longer has a dangerous mental condition, or that such an order would be consistent with the public safety and welfare of the community and the defendant. The statute mandates that the issuance of a transfer order must also be accompanied by an order of conditions.
Subdivision (12) titled "Release order and order of conditions” authorizes the Commissioner to apply for a release order when a defendant in his custody pursuant to a retention order or recommitment order no longer in his opinion has a dangerous mental disorder and is no longer mentally ill. This subdivision provides for essentially the same alternative possible findings which have been described above. As here relevant, it provides that if the court issues either a transfer order or a release order, the order must be accompanied by an order of conditions.
The section with whose construction we are primarily concerned is subdivision (14), captioned "Recommitment order”, which provides in relevant part: "At any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order, or to a superior court in the county where the defendant is then residing, for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder.” The section goes on to provide: "If the court finds that the defendant has a dangerous mental disorder, it must issue a recommitment order.”
It is undisputed that the application seeking a recommitment order occurred here during a "period covered by an order of conditions”. The evidence is clear that the District Attorney was of the view that the defendant had a dangerous mental disorder. The evidence convincingly supports the court’s conclusion that the defendant suffered from a dangerous mental disorder. Accordingly, under the statute the court was required to issue a recommitment order, and did so.
The legal difficulty perceived in the court’s opinion arises from the use of the term "recommitment order”, and the view that this term necessarily implied that the proceeding autho*23rized in subdivision (14) was to be available only with regard to someone who at some earlier point, presumably at the time of the first examination, had been the subject of a commitment order.
There are three major difficulties with this construction of the statute, which separately and collectively disclose it to be a palpable misreading of that which was said in the subdivision and that which was meant. First, the statute does not define recommitment order as an order issued with regard to someone who had previously been the subject of a commitment order. The two phrases are carefully defined in the definitional portion of the statute. Section 330.20 (1) (f) reads: " 'Commitment order’ or 'recommitment order’ means an order committing a defendant to the custody of the commissioner for confinement in a secure facility for care and treatment for six months from the date of the order.”
As is apparent from the definition, it contains no suggestion that a recommitment order is an order available only with regard to someone previously subject to a commitment order. On the contrary, the terms are defined in precisely the same way. What becomes clear from a reading of the statute as a whole is that the term "commitment order” was used where there was a finding that the defendant had a dangerous mental disorder at the first postverdict hearing, and that the term "recommitment order” was used where such a finding was made at a subdivision (14) hearing.
The reason for the use of two terms defined in precisely the same way—"commitment order” and "recommitment order”— becomes evident when one compares the provisions of subdivision (8) regulating the obligations of the Commissioner in whose custody the defendant is pursuant to a commitment order, and subdivisions (11) and (12) regulating the responsibility of the Commissioner in whose custody a defendant is pursuant to a recommitment order or a retention order. It is apparent from a comparison of these sections that the authors used two separate terms with the same definition because they intended to make a distinction between the procedures available with regard to a defendant in custody pursuant to a commitment order and the procedures available where a defendant was in custody pursuant to a recommitment order or a retention order.
Thus, in subdivision (8) it is provided that when a defendant is in the Commissioner’s custody pursuant to a commitment *24order, "the commissioner must, at least thirty days prior to the expiration of the period prescribed in the order, apply to the court * * * for a first retention order or a release order.” Under subdivision (11), however, where the defendant is in the Commissioner’s custody pursuant to a retention order or a recommitment order, the Commissioner is authorized to apply at any time for a transfer order, when he is "of the view that the defendant does not have a dangerous mental disorder or that, consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warrants his transfer from a secure facility to a non-secure facility.” Similarly, subdivision (12) authorizes the Commissioner, with regard to a defendant in his custody pursuant to a retention order or recommitment order, to apply for a release order, once again without any limitation of time, when the Commissioner "is of the view that the defendant no longer has a dangerous mental disorder and is no longer mentally ill.”
Second, the construction adopted in the court’s opinion deprives of all legal significance the use of the term "order of conditions” in subdivision (7). At no point in the statute other than in subdivision (14), and at no place in the Mental Hygiene Law, are legal consequences attached to this term, which was introduced into the law, and defined, in CPL 330.20. Under the court opinion’s construction, the issuance of an order of conditions has legal consequences only where issued with regard to someone who had previously been the subject of a commitment order. Under this perplexing view, the Legislature engaged in a meaningless verbal exercise, wholly without legal meaning or consequence, when in subdivision (7) it mandated the court to issue such an order upon a finding "that the defendant is mentally ill but does not have a dangerous mental disorder”, and when it extended to the hearing court the right to issue such an order upon a finding that the defendant did not suffer from a dangerous mental disorder and was not mentally ill. This approach violates a fundamental canon of statutory construction, cannot be right, and in fact is not right.
Finally, it is offensive to common sense to conclude that the authors of this law would have used the formulation set forth in subdivision (14) if they intended to limit the applicability of the proceeding set forth in that subdivision to those defendants who had previously been the subject of a commitment order. As we have seen, the subdivision opens with the follow*25ing language: "At any time during the period covered by an order of conditions an application may be made”. As we have also seen, several of the subdivisions in the statute preceding subdivision (14) mandate the hearing court under varying described circumstances to issue an order of conditions, and in the one situation presented, authorizes the hearing court to do so. If the authors of the statute intended to limit the applicability of the subdivision (14) proceedings to the single situation in which an order of conditions had been issued with regard to someone previously the subject of a commitment order, it is inconceivable that they would not have said so in any number of ways that could have readily conveyed that thought. The expression of such an intent, clearly an important one, did not present a complicated drafting problem. It makes no sense at all to suppose that the authors would have undertaken to communicate such an intent through the use of the term "recommitment order” on the apparent expectation that Judges would shrewdly understand that the term was to be given a meaning not embraced in the definition provided in the statute.
Any doubt that subdivision (14) authorized the very proceeding that occurred here under the undisputed circumstances disclosed in the record is conclusively eliminated by a consideration of the relevant legislative history.
CPL 330.20 was drafted by a committee of the Law Revision Commission. The statute as passed was in all respects relevant to the issue presented identical with the statute as proposed by that committee. The then proposed statute was accompanied by a Report of the Law Revision Commission to which was attached a flow chart diagraming the procedures that were to follow each of the several authorized findings at the first examination described earlier. (See, 1981 Report of NY Law Rev Commn [1981 NY Legis Doc No. 65] in 1981 McKinney’s Session Laws of NY, at 2251 et seq.)
Both the Report of the Law Revision Commission and the flow charts addressed precisely the alternative procedures that were to follow each of the three alternative findings authorized under the law. Both the relevant discussion in the report and the diagramatic description in the flow chart leave no room for reasonable doubt that it was intended that the procedure set forth in subdivision (14) was to be available both where an order of conditions was issued in connection with a finding that the defendant was mentally ill but did not have a dangerous mental disorder, and where such an order of condi*26tions was issued in connection with a finding, as was made here, that the defendant did not have a dangerous mental disorder and is not mentally ill.
Thus, with regard to a finding at the first postverdict examination that the defendant does not have a dangerous mental disorder but is mentally ill, the report said (1981 McKinney’s Session Laws of NY, at 2268):
"(ii) Defendant does not have a dangerous mental disorder but is mentally ill.
"If, at the conclusion of the initial post-verdict hearing, the court finds that the defendant does not have a dangerous mental disorder but is mentally ill, the provisions of the Mental Hygiene Law shall apply at that stage of the proceedings and that law shall govern all subsequent proceedings regarding retention, conditional release or discharge. However, having found the defendant mentally ill, the court must issue an order of conditions and an order committing the defendant to DMH. The latter order shall be deemed an order made pursuant to the Mental Hygiene Law (Proposed CPL 330.20, subd. 7.)
"At any time during the effective period of the order of conditions, the district attorney or the Commissioner may apply to the court for a recommitment order if he believes that the defendant has a dangerous mental disorder. If, after a hearing on such application, the court finds that the defendant has a dangerous mental disorder, it must issue a recommitment order directing the defendant to be committed to a secure facility in DMH for six months. If a recommitment order is issued, subsequent proceedings regarding retention or release of the defendant shall be governed by the provisions of proposed CPL 330.20. (Proposed CPL 330.20, subd. 15.)” (Subdivision [15] in the report was renumbered as subdivision [14] in the statute as passed because of the deletion of one section not relevant to the issue presented.)
The report then went on to describe the procedure to be followed following a finding at the first postverdict hearing that the defendant does not have a dangerous mental disorder and is not mentally ill, precisely the situation presented here:
"(iii) Defendant does not have a dangerous mental disorder and is not mentally ill.
"If, at the conclusion of the initial post-verdict hearing, the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, the court must dis*27charge the defendant either unconditionally or subject to an order of conditions. (Proposed CPL 330.20, subd. 7.)
"At any time during the effective period of an order of conditions issued in conjunction with a defendant’s discharge, the district attorney or the Commissioner may apply to the court for a recommitment order if he believes that the defendant has a dangerous mental disorder. If, after a hearing on the application, the court finds that the defendant has a dangerous mental disorder, it must issue a recommitment order directing the defendant to be committed to a secure facility in DMH for six months. If a recommitment order is issued, subsequent proceedings regarding retention or release of the defendant shall be governed by the provisions of proposed CPL 330.20. (Proposed CPL 330.20, subd. 15.)” (1981 McKinney’s Session Laws of NY, at 2268.)
Exactly the same procedures are set forth with equal clarity and lack of ambiguity in the flow chart that had been annexed to the report, and which was appended to the Bellacosa Practice Commentary to CPL 330.20 because of the commentator’s view that it "provides an excellent graphic paraphrase of the new provisions”. (McKinney’s Cons Laws of NY, Book 11 A, at 23.)
It is difficult even to envisage legislative history more dispositive of the precise issue of statutory construction presented than that disclosed in the above-quoted portions of the report. I have read with care the discussion in the majority opinion on the issue of statutory construction, and am unable to perceive in it a comprehensible explanation of the basis on which the court majority, in the face of absolutely clear, dispositive evidence of legislative intent on the very issue presented, have concluded that the statute did not authorize a proceeding that it clearly authorized, and that it was indisputably intended to authorize.
Let me add that nothing in People v Flockhart (96 AD2d 843), so heavily relied on in the court’s opinion, provides the slightest support for the statutory construction adopted in that opinion, or, indeed, has anything whatever to do with the issue before us. In People v Flockhart (supra), the Second Department was presented with an order of conditions accompanying a civil commitment, which undertook to control and regulate the commitment of the defendant in a manner not authorized by the Mental Hygiene Law, and clearly inconsistent with that law. The court was not confronted with the *28issue presented here, and accordingly said nothing relevant to that issue, as to whether an order of conditions issued pursuant to subdivision (7) justified a subdivision (14) hearing under the explicit language of that subdivision, which, as already observed, opened with the following sentence: "At any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order, or to a superior court in the county where the defendant is then residing, for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder.”
Assuming that subdivision (14) was construed to authorize the proceeding that occurred under the circumstances presented, the defendant contends that the subdivision as so construed would violate his constitutional rights. The constitutional argument presented by the defendant, and apparently adopted in the court’s opinion, asserts that a failure to find at the first postverdict or postplea hearing that the defendant then suffered from a dangerous mental condition deprives the Legislature of the constitutional right, in any later commitment proceeding, to make any distinction between defendants acquitted of a crime as not responsible by reason of mental disease, and others, even though it were determined at such a hearing that the defendant suffered from a mental disease that made it essential for his welfare to be committed to a State institution, or alternatively, was found to suffer from an ongoing mental condition that justified an order of conditions directing his compliance with a described treatment plan.
I know of no currently viable legal authority that supports this thesis, which is directly contrary to the clear import of the most recent authoritative decisions of the United States Supreme Court and the New York Court of Appeals, and which ultimately rests on a failure to appreciate the realistic problem of public policy presented by a defendant who committed a crime and was acquitted because of a mental disease, and who continued at the time of the hearing to suffer from an ongoing mental condition related to the crime he committed.
An analysis of the constitutional issue presented necessarily starts with a consideration of the opinions of the United States Supreme Court in Jones v United States (463 US 354) and of the New York Court of Appeals in People v Escobar (61 NY2d 431). An accurate understanding of the fundamental principles set forth in these two opinions is essential to a *29thoughtful consideration of the constitutional issue here raised. With respect, the discussion of the relevant authorities in the court’s opinion seriously misrepresents that which was set forth in Jones v United States (supra) and in People v Escobar (supra). In particular, the court’s opinion turns the Supreme Court’s opinion in Jones v United States (supra) on its head, and presents as supportive of its constitutional conclusion an opinion which on any realistic evaluation strongly supports the constitutionality of the statute as applied to this defendant under the circumstances set forth in the record.
The principle is now surely firmly established, if it were ever in doubt, that an acquittal of a defendant by reason of his mental disease, implicit in which is a determination that the defendant had indeed committed the crime with which he was charged, allows under the Constitution some differences in subsequent commitment proceedings addressed to him from those prescribed for other persons.
In Jones v United States (supra), the Supreme Court sustained the constitutionality of District of Columbia statutory provisions with regard to a criminal defendant acquitted by reason of insanity which provided that at a subsequent judicial hearing to determine his eligibility for release from commitment the defendant had the burden of proving by a preponderance of the evidence that he is no longer mentally ill or dangerous, and, assuming he did not discharge that burden, further provided that at any subsequent judicial hearing to determine the defendant’s eligibility for release the burden of proof continued to be on defendant to establish his eligibility by a preponderance of the evidence.
The constitutionality of these provisions was sustained notwithstanding the fact that the District of Columbia civil commitment procedures, in accordance with the constitutional requirement set forth in Addington v Texas (441 US 418, 425), provided that in civil commitments an individual may be committed only upon clear and convincing proof by the government that he is mentally ill and likely to injure himself or others. In addition, the constitutionality of the District of Columbia Code provisions was sustained by the court notwithstanding the further fact that at the time the defendant unsuccessfully sought his release at a second hearing he had already been committed for a period of time in excess of the maximum sentence that he could have received if he had been convicted of the criminal charge.
*30The single issue dividing the Supreme Court was whether or not the code provisions under which the burden of proof rested upon the defendant to secure his release could constitutionally apply after the expiration of the maximum sentence that he could have received under the criminal charge, the dissenting Justices believing that the Constitution required the application of the usual civil commitment standard of proof after the defendant had been committed for the maximum period of time that he could have received under the criminal charge.
The majority opinion in Jones v United States (463 US 354, supra) is explicit that a defendant acquitted of a criminal charge by reason of insanity could constitutionally be committed indefinitely until that defendant was able to establish by a preponderance of the evidence that he was no longer mentally ill or dangerous. In reaching this determination, the Supreme Court observed that inherent in an acquittal for insanity is a determination that the defendant beyond a reasonable doubt committed the criminal act charged, and that such a determination (at 364) "certainly indicates dangerousness * * * Indeed, this concrete evidence generally may be at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding.” Nor did the Supreme Court believe that the inference of dangerousness could not reasonably be inferred in a case in which, as in Jones, the crime charged involved no element of violence.
The Supreme Court went on to say (supra, 363 US, at 366): "It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment. The precise evidentiary force of the insanity acquittal, of course, may vary from case to case, but the Due Process Clause does not require Congress to make classifications that fit every individual with the same degree of relevance.”
Following an analysis of the opinion in Addington v Texas (supra) in which the court had determined that in civil commitment proceedings the Constitution required proof by clear and convincing evidence, the court went on to say (supra, 463 US, at 367-368): "We therefore conclude that concerns critical to our decision in Addington are diminished or absent in the case of insanity acquittees. Accordingly, there is no reason for adopting the same standard of proof in both cases. '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 US *31471, 481 * * * The preponderance of the evidence standard comports with due process for commitment of insanity acquit-tees.”
In People v Escobar (61 NY2d 431, supra), the Court of Appeals was required to determine whether the burden of proof placed upon the People under CPL 330.20—" 'to the satisfaction of the court’—is fulfilled when the People establish by a fair preponderance of the credible evidence, rather than by clear and convincing evidence, that the defendant continues to suffer from a dangerous mental disorder or is mentally ill” (at 434-435). In determining that the fair preponderance test was to be applied under the statute, and that it was constitutional, the court preliminarily concluded that the statutory language "to the satisfaction of the court” was intended to require (at 438) "only that the burden comply with Federal constitutional requirements.”
Observing that in Jones v United States (supra) the Supreme Court had sustained the statute that imposed the burden of proof on a defendant to establish that he has regained his sanity in order to be released, the court went on to say (supra, 61 NY2d, at 439-440): "It necessarily follows that in view of the placement of the burden of proof upon the District Attorney, it is constitutionally permissible to only require the District Attorney to prove defendant’s mental defect by a preponderance of the evidence rather than by the more demanding clear and convincing standard.”
The Court of Appeals went on to say (supra, 61 NY2d, at 440): "The preponderance standard not only satisfies due process and equal protection requirements, but also best fulfills the Legislature’s purpose in enacting the subject statutory scheme—'to ensure the safety of the public and to safeguard the rights of defendants found not responsible’. (1981 Report of NY Law Rev Comm, McKinney’s Session Laws of NY, 1981, at p 2251.) To require the District Attorney to prove defendant’s mental disorder by clear and convincing evidence would impose far too heavy a burden upon the prosecutor, who a short time earlier was required to demonstrate (but was unsuccessful in his attempt at trial) by proof beyond a reasonable doubt that the defendant was criminally responsible when he committed the subject crimes. Imposing the heavier burden would unnecessarily increase the risk that a person suffering from a mental disorder who had previously engaged in criminal behavior will be released from custody prematurely. The dangers to the public and the defendant himself *32from such a result are self-evident and it is precisely that situation which we believe the Legislature sought to avoid. We hold, therefore, that the preponderance of the evidence standard, and not that requiring clear and convincing evidence, should have been applied at both the initial commitment and first retention hearings.”
The court went on explicitly to describe as no longer viable in light of the Supreme Court decision in Jones (supra), the dicta in Matter of Torsney (State Commr. of Mental Hygiene— Gold) (47 NY2d 667, 676) that had indicated "that the same procedural and substantive standards should be applied in both civil commitment proceedings and proceedings to continue insanity acquittees in the custody of the commissioner” (supra, 61 NY2d, at 440-441).
In a significant footnote (supra, at 439, n 4), the Court of Appeals went on to say: "Although not vigorously disputed by defendant, we note that our decision today fully comports with equal protection guarantees as well as due process even though we impose a less demanding burden of proof in this case than we would in a case such as Addington v Texas (441 US 418) where the State seeks to commit an individual who has not engaged in criminal conduct. As the Supreme Court recognized in Jones v United States (463 US [354, 367], 103 S Ct 3043, 3051), there are important 'differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof.’ (See, also, Warren v Harvey, 632 F2d 925, 930, cert den 449 US 902.)”
In his appellate presentation, petitioner accurately points out that in this case we are presented with a determination at the first postverdict hearing that defendant did not have a dangerous mental disorder and was not mentally ill, and that this finding presents an issue not explicitly addressed by the Supreme Court in Jones (463 US 354, supra), or by the Court of Appeals in Escobar (61 NY2d 431, supra). I agree that the alternative findings authorized by the statute—mentally ill but without a dangerous mental disorder, and not mentally ill and without a dangerous mental disorder—introduce a factor relevant to a consideration of the validity of subsequent procedures with regard to such a defendant. This was fully understood by the authors of CPL 330.20, and was in fact fundamental to the three-track approach meticulously set forth in that statute, which carefully distinguished among the procedures to follow a determination that the defendant had a *33dangerous mental disorder, a determination that he was mentally ill but did not have a dangerous mental disorder, and a determination that the defendant did not have a dangerous mental disorder and was not mentally ill.
What seems to me fundamentally untenable is the thesis that in the absence of a finding at the first postverdict hearing that the defendant then has a dangerous mental disorder, the Legislature may not constitutionally make any distinction between insanity acquittees and others. Upon analysis, it becomes apparent that this sweeping constitutional conclusion, supported only by a casual and misleading discussion of the applicable authorities, rests on a transparently erroneous identification of the inference of dangerousness from a criminal act committed by a person found not responsible because of mental disease with the concept of a dangerous mental disorder as defined in CPL 330.20 (1) (c). But it is obvious that the two concepts are quite distinct, and that the inference of dangerousness from a crime committed by a person not responsible because of mental illness which the Supreme Court found in Jones (supra) to justify some differences in treatment of such persons from those who did not commit a crime, is in no way extinguished for constitutional purposes by a determination at the hearing that the defendant does not suffer from a dangerous mental disorder, at least where the hearing results in a determination that the defendant is mentally ill, making it essential to his welfare that he be committed to a State institution, or where it is found that he suffers from a mental condition that requires ongoing treatment.
The thesis set forth in the court’s opinion is fundamentally inconsistent with the clear meaning of the principles set forth in Jones (supra), and endorsed by the Court of Appeals in Escobar (supra), and in particular with the statement in Jones quoted with approval by the Court of Appeals in Escobar, that there are "important differences between the class of potential civil-commitment candidates and the class of insanity acquit-tees that justify differing standards of proof.” (See, Jones v United States, supra, at 367; see, People v Escobar, supra, at 439, n 4.) In addition, it disregards the realities, vividly illustrated in this very case, which the Legislature undertook to address in those parts of the statute here challenged.
A strikingly curious aspect of the court’s constitutional analysis is that it would logically require striking down an unconstitutional subdivision (14) even under the interpretation of that subdivision adopted in the court’s opinion. For if a *34finding at the first postverdict hearing that a defendant does not suffer from a dangerous mental disorder eliminates any constitutional right to distinguish between such a defendant and others, it is difficult to see why a similar conclusion should not be reached if the determination that the defendant does not suffer from a dangerous mental disorder is made at a later hearing.
Let us consider realistically the problem presented by a defendant found at the hearing not to suffer from a dangerous mental disorder but to be mentally ill. That defendant has committed a crime. He has been found not responsible because of mental disease or defect. At the hearing it has been determined that though not suffering from a dangerous mental disorder he is mentally ill, an illness surely related to the crime which he committed, and that it is essential to his welfare to commit him to a State institution.
Is it really conceivable that the Legislature lacks the constitutional power to mandate the court to issue an order of conditions requiring the defendant to conform to a prescribed treatment plan? And if, during the period covered by the order of conditions, the defendant’s mental condition deteriorates and it appears that he is now suffering from a dangerous mental disorder, is it tenable to find that the Legislature lacks the constitutional power to prescribe a procedure for such a defendant that differs in any way from the procedure prescribed for persons who had never committed a crime?
The same analysis is applicable to the finding with which we are concerned, as the facts of this case graphically demonstrate. Once again, in this situation the defendant has committed a crime and was found not responsible by reason of mental disease or defect. At the hearing it is determined that the defendant is not suffering from a dangerous mental disorder and that he is not mentally ill under a statutory definition of that term which embraces the requirement that commitment to a State institution is essential to the defendant’s welfare, and also requires a finding that the defendant’s judgment is so impaired that he is unable to understand the need for such care and treatment. It is, however, determined that the defendant in fact suffers from a mental illness, once again surely related to the crime that he committed, that requires a course of treatment. Surely, the Legislature may constitutionally authorize the court to issue an order of conditions requiring the defendant to conform to a prescribed course of treatment. *35And once again, if during a period covered by that order of conditions, the defendant’s mental condition deteriorates and it appears that he is now suffering from a dangerous mental disorder, may not the combined effect of the crime he committed, the continuing mental condition disclosed at the hearing, and the apparent deterioration of his mental condition so that he may now suffer from a dangerous mental disorder provide a sufficient basis for a Legislature to prescribe a procedure for such a defendant that in some respects differs from those who did not commit a crime?
This is not to say that the Legislature could not reasonably have taken a different view of the matter and decided that no differences were appropriate between insanity acquittees and others where findings of the kind here discussed were made. Clearly, there are respectable arguments to be made in support of such a position. But the issue before us is not whether we agree with the legislative judgment, but whether there is a rational basis for some differential treatment in the described circumstances sufficient to withstand the constitutional challenge here presented. In my opinion, it is quite clear that the circumstances with which we are concerned provided a rational basis for some differences in treatment sufficient to preclude a challenge on constitutional grounds.
It is of course fundamental that the procedures provided must comport with due process. It is equally fundamental that differences in treatment between insanity acquittees and others must be reasonably related to an appropriate public policy. Except for that aspect of the Court of Appeals opinion in People v Escobar (supra) that defined the standard of proof under CPL 330.20 as satisfied by the fair preponderance of evidence, I am aware of nothing in the statute that could even arguably be said to offend due process or violate a defendant’s right to equal protection of the law.
But even the standard of proof determination in Escobar (supra) does not give rise to a genuine constitutional issue. The statute does not provide that the defendant may be committed under subdivision (14) if the court finds by the fair preponderance of evidence that he has a dangerous mental disorder. The burden set forth in the section and throughout the statute is to establish the prescribed condition "to the satisfaction of the court”. In People v Escobar (supra), the Court of Appeals found that this standard was intended to set forth a burden that would comply with Federal constitutional *36standards, and concluded with regard to initial commitment and first retention hearings that the fair preponderance of evidence test complied with those requirements. If this court were to conclude that the Constitution required clear and convincing evidence in a subdivision (14) hearing that the defendant suffered from a dangerous mental disorder—a conclusion that seems to me unjustified under the facts of this case—the appropriate response would be to apply that standard.
Undoubtedly, it would be an unusual situation in which the same phrase defining the burden of proof in a statute is defined differently, depending upon the nature of the hearing at issue. But the possibility of such a distinction is inherent in the use of a term found by the Court of Appeals to have been intended to set forth a constitutionally acceptable burden. Although it would undeniably be troublesome for this court to define "to the satisfaction of the court” to mean something other than that which the Court of Appeals found with regard to other proceedings under the statute, such an approach would make more sense than to strike down as unconstitutional a burden of proof requirement that was intended to be construed by the court in a manner that would comply with Federal constitutional requirements.
Assuming that the court believes the burden of proof under subdivision (14) must be clear and convincing evidence to comply with the Constitution, the limited issue that would be raised by such a determination would be whether the evidence adduced at the hearing met that standard. In my opinion, for reasons apparent in the psychiatric history of the defendant described above, the evidence in fact satisfied the clear and convincing standard.
Let me be clear that I do not believe that the Constitution requires that in a subdivision (14) hearing the defendant’s mental disorder be established by clear and convincing evidence under the circumstances here presented. What seems to me to underly the approach taken in the court’s opinion—both in its obvious misreading of the statute and its inaccurate statement of the currently applicable constitutional principles —is a sense of disquiet about a situation that is not in fact before us—a situation in which a defendant, many years after the commission of the crime, may be committed to a secure facility on the basis of a finding that he suffers from a dangerous mental disorder established only by the fair pre*37ponderance of the evidence. I share the court’s doubts as to the constitutional validity of the fair preponderance standard of proof in such a situation. Where a number of years have elapsed without incident since the commission of the crime, the justification for employing a standard of proof less than that constitutionally required in civil commitment proceedings seems tenuous indeed.
The concern which I share with the court majority as to the constitutional acceptability of the fair preponderance standard in such a situation is quite comparable to that expressed by the dissenting Justices of the Supreme Court in Jones v United States (supra). As we have seen, the dissenting Justices acknowledged the constitutional appropriateness of a different burden of proof with regard to insanity acquittees for a limited period of time, ending with the maximum period of potential incarceration under the crime charged, but strongly objected to allowing a defendant to be institutionalized indefinitely until he could establish that he was no longer dangerous or mentally ill. Notwithstanding the majority opinion in Jones, I believe there would be a reasonable basis for requiring in a subdivision (14) proceeding proof by clear and convincing evidence in the situation that I have described.
But we are not presented with that problem in this case. Here we have a defendant who committed a violent crime, who was found not responsible because of a mental disease or defect, who continued to suffer from a major mental disease at the time of the hearing and was accordingly released on an order of conditions requiring his adherence to a treatment plan, whose mental condition deteriorated significantly within a few months, and who became the subject of a hearing resulting in a recommitment order only some eight months after issuance of the order of conditions. Under these facts, it seems to me clearly consistent with the presently controlling constitutional principles to apply the fair preponderance test set forth by the Court of Appeals in People v Escobar (61 NY2d 431, supra) to the proceeding that here took place.
Accordingly, the order of the Supreme Court, New York County (Carol Berkman, J.), entered July 22, 1986, committing defendant to the custody of the Commissioner of Mental Health for confinement in a secure facility for six months, should be affirmed.
*38Murphy, P. J., and Kassal, J., concur with Asch, J.; Sandler and Carro, JJ., dissent in an opinion by Sandler, J.
Order, Supreme Court, New York County, entered on July 22, 1986, reversed, on the law, and the matter remanded for further proceedings in accordance with the opinion of this court. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902875/ | OPINION OF THE COURT
Weiss, J.
Should a law firm be disqualified as counsel for a claimant *40in the Court of Claims because the firm also represents the State in a subsequent unrelated lawsuit? We think not and affirm the Court of Claims order denying the State’s disqualification motion.
On October 11, 1983, claimant commenced this action to recover unpaid rent based upon electrical usage in New York City offices leased to the Bureau of Leases of the State Office of General Services (hereinafter the Bureau) and occupied by the State Department of Health. The law firm of Carter, Conboy, Bardwell, Case & Blackmore (hereinafter Carter Con-boy) has represented claimant since the inception of the action. In January 1986, Sandra Lynn Bauer commenced an action in the Court of Claims to recover damages for personal injuries sustained in an accident during her employment as an instructor in a day care facility operated on premises owned by the State at the Empire State Plaza in the City of Albany. The Children’s Place at the Plaza, Inc., a not-for-profit corporation, agreed to indemnify the State for liability arising out of its operation of the day care facility and provided casualty insurance for that purpose. The insurance carrier retained Carter Conboy to defend the State in the Bauer action. The Court of Claims denied the State’s motion to disqualify Carter Conboy from representing claimant based upon an alleged conflict of interest, giving rise to this appeal by the State.
We affirm, albeit using a somewhat different analysis. The State’s principal objection is that the Court of Claims erred in applying what is generally referred to as the "substantial relationship” test in determining whether Carter Conboy should be disqualified. Under this standard, disqualification will result where the party seeking that relief establishes "a substantial relationship between the issues in the litigation and the subject matter of the prior representation, or where counsel had access to confidential material substantially related to the litigation” (Saftler v Government Employees Ins. Co., 95 AD2d 54, 57; see, Hunkins v Lake Placid Vacation Corp., 120 AD2d 199, 201). A reasonable probability that confidential information will be disclosed warrants the disqualification of counsel (see, Greene v Greene, 47 NY2d 447, 453).
The State maintains that this standard pertains only where counsel’s prior representation of a client is concerned, and not in an instance, as here, involving simultaneous representation. In the present situation, the State urges that the stricter *41"prima facie” standard delineated in Cinema 5 v Cinerama, Inc. (528 F2d 1384) applies. In Cinema 5, the Second Circuit Court of Appeals held that "[w]here the relationship [between attorney and client] is a continuing one, adverse representation is prima facie improper * * * and the attorney must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation” (supra, at 1387 [emphasis in original]). In contrast to the substantial relationship standard, the Cinema 5 standard places the burden of proof on the party opposing disqualification (supra), and shifts the focus from the similarities in litigation to counsel’s fundamental duty of undivided loyalty to his client (Kaminski Bros. v Detroit Diesel Allison, 638 F Supp 414, 417; see, Guthrie Aircraft v Genesee County, 597 F Supp 1097, 1098).
The threshold question thus presented is which standard attends this controversy. There is little dispute that the substantial relationship test customarily applies where counsel accepts employment against a former client (see, Amrod v Doran, 107 AD2d 575; Saftler v Government Employees Ins. Co., supra). Our research indicates, however, that State courts have yet to expressly extend the substantial relationship test to simultaneous representation cases or otherwise apply the Federal prima facie rule (but see, Matter of Weinberg, 129 AD2d 126, 143; Prodell v State of New York, 125 AD2d 805; Hunkins v Lake Placid Vacation Corp., 120 AD2d 199, supra; Rubinstein v Foster Bros. Mfg. Co., 52 AD2d 597). Given the conflicts inherent in a simultaneous representation situation, we are persuaded that the stricter, prima facie Federal rule should apply. In this manner, counsel’s fundamental duty of undivided loyalty to his client may properly be ensured (see, Matter of Kelly, 23 NY2d 368, 376; Code of Professional Responsibility Canon 5).
Applying this prima facie standard to the case at hand, we find that Carter Conboy has met its heavy burden of demonstrating the absence of any conflict in loyalties or impediments to a vigorous representation of each client. Although not determinative, it is significant that there is absolutely no substantive nexus between the two lawsuits. Nor is there any real potential for the disclosure of confidential information, notwithstanding the Bureau’s involvement in each lawsuit. In essence, Carter Conboy has not compromised its duty of undivided loyalty to either claimant here or the State in the Bauer action. Given the multitudinous nature of the State’s activi*42ties, even the appearance of impropriety seems de minimis here (see, Armstrong v McAlpin, 625 F2d 433, 445, vacated and remanded on other grounds 449 US 1106). Moreover, to disqualify Carter Conboy after extensive involvement in this lawsuit for more than four years would prove patently unfair to both the law firm and its client. The circumstances simply do not warrant such drastic relief. Accordingly, the State’s disqualification motion was properly denied.
Casey, J. P., Yesawich, Jr., Levine and Mercure, JJ., concur.
Order affirmed, without costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1191519/ | 737 P.2d 921 (1987)
James L. PIERCE, Plaintiff,
v.
FRANKLIN ELECTRIC CO., an Indiana corporation, Defendant.
No. 66982.
Supreme Court of Oklahoma.
May 5, 1987.
Walter Jenny, Jr., Messrs. Babb, Nash & Christensen, Inc., Oklahoma City, for plaintiff.
John F. McCormick, Jr., Randall G. Vaughan, Messrs. Pray, Walker, Jackson, Williamson & Marlar, Tulsa, for defendant.
*922 OPALA, Justice.
The United States District Court for the Eastern District of Oklahoma certified to this court the following question to be answered pursuant to the Uniform Certification of Questions of Law Act, 20 Ohio St. 1981 §§ 1601-1612: Under 85 Ohio St. 1981 §§ 5-7 and 14, may an employer lawfully terminate the employment of a worker's compensation claimant while he is on temporary total disability leave of absence for the sole reason that he is not physically able to return to work at that time?
We answer this question in the affirmative and hold that an employer who terminates an at-will employee for the sole reason that he is "physically unable to perform" his job duties does not commit the statutory tort created in 85 Ohio St. 1981 §§ 5-7, by the terms of which liability is imposable for a retaliatory discharge of a workers' compensation claimant.
ANATOMY OF FEDERAL LITIGATION
The plaintiff, James L. Pierce, was employed by the defendant corporation, Franklin Electric Company [Franklin]. After suffering a job-related injury, Pierce required an extended absence from work and claimed workers' compensation benefits. *923 Franklin terminated Pierce's employment during his absence at a time when, according to a later finding of the Oklahoma Workers' Compensation Court, Pierce was temporarily totally disabled. Pierce sued in federal court alleging that Franklin wrongfully discharged him in violation of the Oklahoma Workers' Compensation Act [the Act], citing 85 Ohio St. 1981 §§ 5-7 and 14. Franklin sought summary judgment submitting that its personnel policy, which limited the duration of medical leaves of absence, mandated Pierce's discharge and that its conduct was statutorily protected.
ANALYSIS, DISCUSSION AND ANSWER
The parties in this case seek an absolute rule of law to govern employment policies and practices. The employee complains that discharging a worker who is recovering from a job-related injury violates the public policy of Oklahoma as expressed in the act and in decisions of this court. In his view, Oklahoma laws designed to protect injured employees require a rule that bars termination of a temporarily disabled employee because he is absent from work. The employer argues that an employee who is unable to work is not protected from retaliatory discharge under the Act. We examine the statute that defines the proscribed conduct and conclude that neither view is correct.
The basis for Pierce's wrongful discharge claim is 85 Ohio St. 1981 § 5.[1] In essence, the statute provides that an employer may not discharge an employee because he exercises rights granted by the workers' compensation statutes. Section 5 protects certain activities from retaliation: filing a claim; retaining a lawyer to pursue a claim; instituting, or causing the institution of, any proceeding under the Act; or testifying in a proceeding. In Webb v. Dayton Tire & Rubber Co. Etc.,[2] the court held that receipt of medical treatment or the commencement of temporary compensation payments may constitute the institution of a proceeding for § 5 purposes. If an employee's participation in one of these protected activities is a significant factor in the employer's decision to terminate the employee, the discharge is retaliatory.[3]
In this case, the certified question poses a factual situation where the sole reason for the employee's discharge is his absence from work due to a compensated disability. Thus the discharge under examination here is unlawful only if the employee's absence from work is a protected activity by itself. In other words, our attribution of unlawfulness to this discharge would be tantamount to a finding that the legislature intended § 5 to guarantee continued employment for injured workers. We cannot so hold.
Sections 5-7 of the Act created a cause of action in tort that limits the employer's common-law right to terminate an at-will employee.[4] As a legislative enactment that altered pre-existing legal rights, the statute established a narrow exception to the general rule. Courts should not unnecessarily expand its application. The Act does not expressly provide injured employees with an excused work absence during *924 their healing period, and we are unable to create such an additional workers' compensation benefit. Accordingly, we hold that the statute does not prohibit the discharge of an employee because he is absent from work, even when the absence is caused by compensated injury and medical treatment.
The employee argues that protecting his employment during a compensated medical absence furthers the purpose of the Act and Oklahoma public policy. Pierce relies on Iwunoh v. Maremont Corp.[5] for the proposition that the primary objective of the Act is rehabilitation of injured workers and restoration of their productive capacity through medical treatment. He further argues that §§ 5-7 establish a public policy of insuring that injured employees receive the benefits of the Act, particularly the medical care they deserve under § 14. This argument misconceives the nature of a retaliatory discharge claim and the policy at issue.
The court has previously stated that, although the statutory tort is codified under Title 85 which deals with workers' compensation, the compiler's arrangement does not necessarily have interpretive significance.[6] In WRG Const. Co. v. Hoebel, we concluded from the language of the Act that the legislature intended to create a tort claim separate from any compensation remedy.[7] The distinction is particularly significant in this case.
The statutory tort protects at-will employment from certain retaliatory terminations. The statute imposes liability on employers who engage in offensive conduct that undermines the functioning of the workers' compensation scheme. This remedial purpose justifies a limited intrusion into the employment relationship.
On the other hand, the compensation benefits provided by the Act protect workers. The principle underlying the system is insurance. An employer is responsible for bodily injuries suffered by his employees in the course of their employment regardless of fault or any wrongful conduct by him.[8]
An employee who is discharged during a period of temporary disability does not lose the compensation benefits to which he is otherwise entitled. The Act does not suggest that termination would relieve an employer of responsibility for the employee's medical care and disability payments.[9] Similarly, rehabilitation does not depend on employment status.[10] While we recognize that interrupted employment may deprive the employee of important benefits such as seniority, the workers' compensation system does not provide guaranteed employment or other employment privileges.
The statutory norm does not call for some affirmative action by the employer.[11] The employee must prove that the employer acted with a retaliatory motive.[12] The Act neither requires the employer to treat a claimant more advantageously than other absent workers nor does it penalize the employer for a discharge motivated by permissible factors.
In this case, the employer alleges a personnel policy that excused medical leaves of absence but provided a maximum absence of one year. If a disabled employee's absence was excessive and violative of the employer's nondiscriminatory rule, neutral application of the policy would require the employee's termination. Whether a workers' compensation claim was the reason for his subsequent discharge would be a factual issue. For example, the employer's alleged reason might be a pretext or one of multiple reasons.
*925 The text of the statute provides additional support for concluding that disabled workers are not absolutely protected by expressing a limitation in retaliatory discharge cases. The final sentence of § 5 provides that an employer shall not be required to rehire or retain an employee who is physically unable to perform his job duties.[13] This statutory language demonstrates a legislative concern for undue interference with the employment relationship. An employer must operate economically and should be allowed to purchase the services his business requires. The proviso suggests that an employee's physical capacity may constitute a legitimate nondiscriminatory reason for an employment decision.[14] In short, to prohibit an employer from terminating a disabled employee for his absence would be unnecessarily intrusive and contrary to legislative intent.
We do not hold today that an employer may discharge a disabled employee with impunity. A totally disabled employee is by definition "physically unable to perform" his job[15] and to exclude absolutely such worker from the protection of the § 5 shield against retaliatory discharge would severely undermine the intended objective of the statutory scheme.[16] The certified question presents inability to return to work as the sole reason for a temporarily disabled employee's discharge; thus impermissible motivational factors are necessarily absent or have been ruled out. We do not today decide the case in which retaliatory motivation plays a significant part in an employer's decision to discharge a temporarily disabled worker or in which the employee is permanently disabled.[17]
HARGRAVE, V.C.J., and HODGES, LAVENDER, SIMMS and SUMMERS, JJ., concur.
WILSON and KAUGER, JJ., concur in result.
DOOLIN, C.J., dissents.
NOTES
[1] The terms of 85 Ohio St. 1981 § 5 provide:
"No person, firm, partnership or corporation may discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties." [Emphasis supplied.]
Subsequent sections of the Act impose liability on an employer who violates § 5 by providing injured employees with legal and equitable remedies and a means of enforcement. See 85 Ohio St. 1981 §§ 6-7.
[2] Okl., 697 P.2d 519, 523-524 [1985].
[3] Thompson v. Medley Material Handling, Inc., Okl., 732 P.2d 461, 463 [1987].
[4] Oklahoma case law continues to recognize that an at-will employee is subject to termination for any cause or without cause. Wickham v. Belveal, Okl., 386 P.2d 315, 317 [1963]. In WRG Const. Co. v. Hoebel, Okl., 600 P.2d 334 [1979], we held that §§ 5-7 created a statutory tort litigable in the district courts.
[5] Okl., 692 P.2d 548, 550 [1985].
[6] WRG Const. Co. v. Hoebel, supra note 4 at 336.
[7] WRG Const. Co. v. Hoebel, supra note 4 at 335.
[8] See 85 Ohio St. 1981 § 11.
[9] See 85 Ohio St. 1981 §§ 14, 22.
[10] See 85 Ohio St. 1981 § 16.
[11] Cf. Wis. Stat. Ann. § 102.35(3) [West 1986] (employers are expressly required to rehire injured employees where suitable employment is available).
[12] See Thompson v. Medley Material Handling, Inc., supra note 3 at 463.
[13] For the full text of § 5, see supra note 1.
[14] One might interpret the proviso of § 5 as limiting the reinstatement remedy rather than the statute's scope. We express no opinion concerning the effect of the proviso but merely note that the statute does not provide a remedy in all cases.
[15] The Act defines "permanent total disability" in 85 O.S.Supp. 1986 § 3(12). "Temporary total disability" also expresses a compensation status. See 85 O.S.Supp. 1986 § 22(2).
[16] Some statutes expressly exclude permanently disabled workers from the protection afforded by the prohibition against a retaliatory discharge. See, e.g., N.C. Gen. Stat. § 97-6.1(e) [1985]. We express no opinion concerning the applicability of Oklahoma's protective statute to such situations.
[17] Although research yields no statutes with comparable language, the overwhelming majority of courts in other jurisdictions hold that an injured worker may be terminated for absenteeism unless he proves the employer's retaliatory motive. See e.g. Dickens v. Tidewater Stevedoring Corp., 656 F.2d 74 [4th Cir.1981] (applying 33 U.S.C. § 948a); Slover v. Brown, 140 Ill. App. 3d 618, 94 Ill.Dec 856, 488 N.E.2d 1103 [1986]; Kern v. South Baltimore Gen. Hosp., 66 Md. App. 441, 504 A.2d 1154 [1986]; McKiness v. Western Union Telegraph Co., 667 S.W.2d 738 [Mo. Ct. App. 1984]; Galante v. Sandoz, Inc., 192 N.J. Super. 403, 470 A.2d 45 [1983], aff'd, 196 N.J. Super. 568, 483 A.2d 829 [App.Div. 1984] and Duncan v. New York State Develop. Center, 63 N.Y.2d 128, 481 N.Y.S.2d 22, 470 N.E.2d 820 [1984]. Contra Judson Steel Corp. v. Workers' Comp. Appeals, 22 Cal. 3d 658, 150 Cal. Rptr. 250, 586 P.2d 564 [1978]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902876/ | OPINION OF THE COURT
Sullivan, J. P.
This appeal presents the issue of whether a court has the power in a matrimonial action to appoint an independent appraiser to value marital property and to apportion the appraiser’s fees between the parties. We hold that it does and, accordingly, affirm the order appealed.
The parties have been married for over 43 years and are the parents of four adult children. The husband is a real estate developer and investor with substantial holdings throughout New Jersey and Florida. His personal worth has been estimated by one source at $300,000,000. All of the assets were acquired during the marriage and are thus, by definition, presumed to be marital property. The husband has filed a 62-page financial statement showing a net worth of $10,943,520 as of December 31, 1986. As is obvious from a review of this document, the husband has extremely complex and substantial interests in over 30 partnerships and "S” corporations. In an unaudited statement as of December 31, 1985, he showed net assets of over $39,000,000. He is currently involved in a joint venture in a $150,000,000 development of a corporate park in West Palm Beach. His wife’s statement shows a total net worth of $3,490,165.40. The value of her share in the various real estate partnerships and "S” corporations, from which she has received some distributions sent to her by the husband, is unknown.
After the service of the husband’s net worth statement, the wife moved for the appointment of an appraiser to determine the value of his various holdings and for a pro rata apportionment of the appraiser’s fees. In support of her application she submitted an accountant’s affidavit challenging, on the ground of its lack of clarity, the husband’s use of "equity value”, rather than fair market value, in evaluating his holdings. The accountant further challenged the husband’s reduction of his net worth by a $3,000,000 "illiquidity discount” which, the accountant claimed, the husband took twice. Also cited was the husband’s dubious use of a tax impact factor in calculating his net worth. In light of the paper losses he is able to generate, the accountant argued, the husband probably did *45not pay taxes in the past and was not likely to do so in the future. For instance, in 1986, the husband showed an adjusted gross income of "minus $8,510,072”. Thus, the accountant claimed, the husband’s net worth was substantially understated because of the imposition of an artificial tax. The wife also questioned the valuation in the husband’s statement of net worth of a 75-acre site in New Jersey, which she refers to as "Kudon House”, an estate, and he characterizes as a "modest house”. The site appears in the net worth statement as "undeveloped land”.
The husband opposed the appointment of an independent appraiser as unnecessary and duplicative in light of his own exhaustive and detailed exposition of his holdings. He also argued that the court lacked statutory as well as inherent authority to make such an appointment. Citing the "extremely complex valuation issues herein”, the court granted the motion and directed the appointment of J. Clarence Davies Realty Co., Inc., whose retainer was to be borne equally by the parties, with the remainder of the fee, if any, to be apportioned by the court at the time of trial (138 Misc 2d 775, 776).
Domestic Relations Law § 236 (B) (5) mandates that the court provide for an equitable distribution of the marital property of the parties in the final judgment of divorce. Obviously, an evaluation of the marital property is essential in carrying out that mandate. When the Equitable Distribution Law (L 1980, ch 281) was originally enacted, effective July 19, 1980, Domestic Relations Law § 237 (a), which provides for the award of counsel fees and expenses in matrimonial actions, did not contain any explicit authority to direct one spouse to pay all or part of the cost of the other’s experts. The statute only provided that in any of the specified matrimonial actions "the court may direct either spouse * * * to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.” Section 237 was not amended until almost three years later to add subdivision (c) (later redesignated subd [d]), effective June 9, 1983, which expressly provides that the term "expenses” as used in subdivisions (a) and (b) of the section shall include appraisal fees, accountant fees and actuarial fees.
Notwithstanding the absence of an explicit statutory provi*46sion therefor in the intervening years, courts routinely awarded funds to one spouse for the retention of an accountant or appraiser to examine the other spouse’s records in order to evaluate them for the purposes of equitable distribution. (See, e.g., Ahern v Ahern, 94 AD2d 53; Hubbard v Hubbard, 113 Misc 2d 763; Fay v Fay, 108 Misc 2d 373, rearg granted and prior determination adhered to 108 Misc 2d 811; Gueli v Gueli, 106 Misc 2d 877.) In Gueli, for instance, the court found in Domestic Relations Law § 236 (B) (5)’s mandate to make an equitable distribution of the marital property of the parties in the final judgment, and section 237’s authorization to compel one spouse to pay for the other spouse’s prosecution or defense of a matrimonial action, the inherent authority to appoint its own expert, whose charges would ultimately be borne by one or both of the parties.
Noteworthy in determining whether the courts had inherent power to appoint appraisers at a party’s expense prior to the 1983 amendment of Domestic Relations Law § 237 is the legislative message which accompanied the amendment. In relevant part the memorandum stated, "This bill will expand the granting of pendente lite awards in matrimonial actions and is basically a codification of the court’s recent interpretation of section 237.” (Mem of Assemblyman Gordon W. Burrows, 1983 NY Legis Ann, at 60.) The amendment was not viewed as necessary to correct an oversight or to empower the judiciary with authority it did not previously possess. Rather, the legislation was essentially a housekeeping measure designed to eliminate any confusion about the extent of powers the courts were already exercising. Nothing in the legislative history indicates that the courts’ prior awarding of appraisers’ fees was considered extraordinary.
The husband, citing Samuelsen v Samuelsen (124 AD2d 650), argues that the Second Department has rejected the notion that courts have the inherent power to appoint an independent appraiser. The husband misinterprets Samuelsen. The court was not objecting to the appointment of an appraiser but, rather, to the submission of the appraiser’s report directly to the trial court, which adopted his figures, without affording the parties the opportunity to review the report or cross-examine the appraiser. The husband also argues that the Court of Appeals in Northrup v Northrup (43 NY2d 566) clearly reaffirmed the restricted authority of courts in matrimonial matters. There, the court, in interpreting Domestic Relations Law § 248, held that courts could not terminate an *47alimony provision merely upon a showing that the former wife was living with another man, but only upon a "holding herself out as his wife”, as the statute requires. In so holding, the court noted, "The courts of this State have no common-law jurisdiction over divorce or its incidents” (supra, at 570). Northrup is readily distinguishable since there the court was concerned with a substantive statutory provision dealing with the right of a spouse to alimony in the event of a defined, specified changed circumstance. We are here dealing with a procedural matter only, one which involves the court’s use of an available discovery device, as part of the truth finding process and within the common-law rules of evidence, in order to arrive at a fair result.
Moreover, courts, notwithstanding the absence of any explicit statutory authority, have been routinely appointing independent psychiatrists and psychologists in custody proceedings pursuant to Domestic Relations Law § 240, at least since 1962 when the Court of Appeals recognized the inherent authority to do so in Kesseler v Kesseler (10 NY2d 445). Kesseler involved a proceeding to modify a separation decree with respect to custody. Although the parties had stipulated to an investigation by a court-appointed family counselor (from the Family Counselling Unit), the court noted that consent was not necessary, observing: "The parties did not have to stipulate that the report of the family counsellor, Mrs. Golomb, should be made to the court. The court could have directed Mrs. Golomb to make an investigation, to be sure, and then could have left her testimony to the parties to deal with under common-law rules in the absence of their consent * * * Nor is there any reason which would prevent the court in the proper exercise of a judicial discretion from calling upon qualified and impartial psychiatrists, psychologists or other professional medical personnel, preferably under the auspices of the probation officer or family counselling unit connected with the court, to examine the infant or to examine the parents also if they will submit to such examination” (supra, at 452).
Indeed, the appointment of psychiatrists and psychologists in custody matters has become such an integral part of our practice that this court has held that the failure to order independent psychiatric and psychological testing constitutes an abuse of discretion, even when the need for such testing emerged in the middle of the hearing. (Giraldo v Giraldo, 85 *48AD2d 164, appeal dismissed 56 NY2d 804.)* Said the court, "[T]he evidence in this record does not permit us to make an informed judgment as to who should obtain custody. The hearing court abused its discretion in failing to order independent psychiatric and psychological testing once it became evident that its decision would turn upon such an evaluation of the parties and their oldest child” (supra, at 173-174).
In New Jersey, which has had an equitable distribution statute since 1971, the emerging case law has also sanctioned the use of independent appraisers. (See, e.g., Fellerman v Bradley, 191 NJ Super 73, 465 A2d 558, affd 192 NJ Super 556, 471 A2d 788; Bowen v Bowen, 96 NJ 36, 473 A2d 73; Rothman v Rothman, 65 NJ 219, 320 A2d 496.) In Fellerman, the court cited Rothman, which, it noted: "mandates that the matrimonial judge determine each asset’s value for the purpose of equitable distribution and that an accountant will sometimes be needed to achieve that purpose. The use of a court-appointed expert accomplishes that stated purpose and does so more efficiently than if each party employed their own. On behalf of the court, he garners the assets and objectively evaluates them. He is not considered anyone’s 'hired gun’ and so disputes regarding his methodology or data base are typically few in number and easily resolved to everyone’s satisfaction. In fact, his unique position has been shown to be significant in prompting settlement * * * The overall effect is that the costs to litigants are minimized, preserving more of the marital estate, and the likelihood of a negotiated accord is maximized, thereby greatly reducing trial time” (supra, 191 NJ Super, at 77-78, 465 A2d, at 560).
Nor does Domestic Relations Law § 237’s provision empowering the court to direct the payment by one spouse of the other’s expenses in the prosecution or defense of certain specified matrimonial actions limit the appointment of an appraiser to only those instances where need is shown, as the husband contends. Section 237 should not be so narrowly read. The conduct of one spouse may, for instance, warrant the imposition upon him or her of the responsibility for the payment of such expenses, irrespective of the other spouse’s means. (See, e.g., Stern v Stern, 67 AD2d 253; see also, Schussler v Schussler, 109 AD2d 875.) In any event, the considera*49tions justifying an award of fees in case of need differ from those in a case such as this where, conceptually, the independent appraiser is being appointed for the benefit of both parties, and to assist the court. In such circumstances, the parties should, in the first instance, share equally the expense of the retainer. Furthermore, as the order appealed provides, at trial the court will have an opportunity to assess the responsibility for any additional fees incurred and to reevaluate the equal sharing of the retainer in the first instance.
Accordingly, the order of the Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered December 18, 1987, which, inter alia, appointed an appraiser to evaluate the marital property, should be affirmed, without costs or disbursements.
Carro, Asch, Kassal and Wallach, JJ., concur.
Order, Supreme Court, New York County, entered on December 18, 1987, unanimously affirmed, without costs and without disbursements.
It has been held that the Surrogate’s Court has the inherent power to appoint an expert witness where necessary to achieve a just disposition. (Matter of Atkinson, 117 AD2d 843.) | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902877/ | *457Judgment, Supreme Court, New York County (Geoffrey D. Wright, J), entered October 6, 2011, confirming an arbitral award, unanimously affirmed, with costs.
Respondents Everlast World’s Boxing Headquarters Corp. and Everlast Worldwide, Inc. (Everlast) did not default by failing to timely answer the petition or by moving to vacate the arbitral award instead of filing a cross petition to dismiss (see CPLR 404, 7502 [a] [iii]). Indeed, Everlast’s motion to vacate did not prejudice any substantial right belonging to petitioner (see CPLR 2001).
The arbitrators committed no misconduct (see CPLR 7511 [b] [1] [i]) when they did not require petitioner to disclose its representation agreements with its other licensors. Everlast failed to show by clear and convincing evidence that those agreements were necessary to prove their defense (Financial Clearing & Servs. Corp. v Katz, 172 AD2d 290 [1st Dept 1991]).
The arbitrators did not exceed their power (see CPLR 7511 [b] [1] [iii]) by affording the word “termination” a different construction from the one that Everlast urged. To be sure, even by common usage, the words “termination” and “expiration” are not generally synonymous. Rather, the word “termination” connotes severance of a relationship before the natural expiration of a term certain, while the word “expiration” connotes an ending occurring upon the passage of time. Courts have both tacitly and explicitly accepted these constructions (see Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477, 480-481 [1st Dept 2011] [court draws a distinction between “natural expiration of the term of the agreement,” on the one hand, and termination under notice of cancellation or breach, on the other]; see also Matter of Paul, 95 AD3d 1647, 1648 [3d Dept 2012] [referring to “expiration” of two-year period while referring to “termination” as a specific event contingent on court approval]; accord In re Turner, 326 BR 563, 575 [WD Pa 2005]; In re Morgan, 181 BR 579, 584 [ND Ala 1994]; Piedmont Interstate Fair Assn, v City of Spartanburg, 274 SC 462, 465-466, 264 SE2d 926, 927 [1980]).
Moreover, reference to paragraph VI (3) (e)—the only paragraph that the parties asked the arbitrators to interpret— suggests that the parties did not consider the two words to be synonymous. Specifically, in that paragraph, the parties’ provide that “in the event of termination of this Agreement,” petitioner would be entitled to certain fees after the termination. However, in paragraph IV the agreement states that it was to expire on *458December 31, 2004 at the latest, unless one of the parties terminated it earlier upon the occurrence of certain enumerated events. Thus, there existed no uncertainty as to the date for the expiration of the agreement. If the parties understood “termination” to be synonymous with “expiration,” they would have had no need to use the conditional phrase “in the event of termination,” as the agreement was already set to expire automatically on a predetermined date. Therefore, the arbitrators’ construction was not irrational and, despite Everlast’s assertions otherwise, did not effectively rewrite the parties’ agreement (see Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383 [I960]).
Everlast argues that no evidence supports the arbitrators’ interpretation of the parties’ agreement. However, this argument is unavailing, because “[mjanifest disregard of the facts is not a permissible ground for vacatur of an award” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 483 [2006], cert dismissed 548 US 940 [2006]; see also e.g. Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, 125 [2010]). At any rate, the record does contain evidence supporting the arbitrators’ decision.
We have considered the parties’ remaining contentions and find that they are unavailing. Concur—Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902878/ | OPINION OF THE COURT
Levine, J.
According to the petition and other supporting papers, petitioner, an attorney, was criminally charged but acquitted after trial of aggravated harassment, allegedly consisting of making repeated "hang-up” telephone calls to a former girlfriend. Following acquittal, petitioner obtained an order seal*52ing the records of the trial. Subsequently, an article appeared in a local newspaper reporting that, following an internal disciplinary proceeding, State Police Investigator Anthony Di Rienz had been found guilty of misconduct for having obtained petitioner’s girlfriend’s unlisted telephone number through the local police, ostensibly for legitimate investigative purposes, and turning over that information to petitioner. Di Rienz’s immediate superior was quoted in the article. As a result of the newspaper article, petitioner sought certain information pursuant to the Freedom of Information Law (Public Officers Law art 6) (hereinafter FOIL) from respondent Division of State Police. The information petitioner requested was:
"1. Any and all records, statistical or factual tabulations of data of the number of days and dates Investigator Anthony Di Rienz was absent from his duties on sick leave, annual or vacation leave or without leave during the period January 1, 1985 through June 30, 1985.
"2. Any and all decisions, reports, memoranda or dispositions constituting the final determination of the Division of State Police in the matter of the disciplinary action taken against Investigator Anthony Di Rienz for unlawfully or improperly obtaining and disclosing an unlisted telephone number * * * in or about the period January 1, 1985 through March 31, 1985.
"3. The written report of accusation prepared relative to the above charge(s) pursuant to 9 NYCRR § 479.1, if any.
”4. The statement of charges and specifications pursuant to 9 NYCRR § 479.5, if any.
"5. The written notification of proposed imposition of penalty pursuant to 9 NYCRR § 479.3, if any.”
The Division’s records officer responded that item 4 was nonexistent and denied the four remaining requests. Following an affirmance of the denial by the Freedom of Information Appeals Board, petitioner commenced this CPLR article 78 proceeding to review the determination. Supreme Court granted petitioner’s request for the information set forth in item 1, but denied the remaining requests pursuant to Civil Rights Law § 50-a (1), which mandates the confidentiality of "[a]ll [police] personnel records, used to evaluate performance toward continued employment or promotion”. This appeal by petitioner ensued.
The issue on appeal is whether Supreme Court correctly *53ruled that the requested records of the Division concerning Di Rienz’s disciplinary proceeding and its final disposition are exempt under FOIL. We sustain Supreme Court’s ruling as to the written report of accusation pursuant to 9 NYCRR 479.1 and the written notification of proposed imposition of penalty pursuant to 9 NYCRR 479.3. As to the written report of accusation, 9 NYCRR 479.1 clearly shows that the document sought is a report of the internal investigation of the complaint against Di Rienz, including the names of the complainant and witnesses interviewed and their version of the facts. This information was properly withheld under the FOIL exemptions relating to data compiled for law enforcement purposes (Public Officers Law § 87 [2] [e] [i], [iii]), or as predecisional, intraagency materials (Public Officers Law § 87 [2] [g]). The report of accusation herein is indistinguishable from that of the complaints of misconduct, nondisclosure of which was upheld on the foregoing grounds in Matter of Gannett Co. v James (86 AD2d 744, 745, lv denied 56 NY2d 502). The application of these exemptions in Gannett as to complaints against police officers was expressly approved by the Court of Appeals in Matter of Capital Newspapers v Burns (67 NY2d 562, 569).
Denial of the disclosure as to the written notification of proposed imposition of penalty pursuant to 9 NYCRR 479.3 was likewise proper. Under the cited regulation, as applicable to the Di Rienz disciplinary proceeding, the document sought represented an intermediate step leading to a decision to proceed to a formal disciplinary hearing. Thus, this information is clearly intraagency and predecisional, exempt under Public Officers Law § 87 (2) (g) (see, Kheel v Ravitch, 93 AD2d 422, 427-428, affd 62 NY2d 1; Sinicropi v County of Nassau, 76 AD2d 832, 833, lv denied 51 NY2d 704). Contrary to petitioner’s contention on appeal, any unauthorized disclosure made by a subordinate officer of the State Police concerning the Di Rienz disciplinary matter does not operate as a waiver by respondents of the FOIL exemptions (see, Granada Bldgs, v City of Kingston, 58 NY2d 705, 708).
We reach a conclusion contrary to that of Supreme Court with respect to petitioner’s request for documents "constituting the final determination” of the disciplinary action against Di Rienz. The information sought is not immune from disclosure as intraagency material, since that exemption does not apply to a "final agency policy or determination” (Public Officers Law § 87 [2] [g] [iii]). Respondents clearly have not *54sustained their burden of showing that the final decision sustaining charges of misconduct against Di Rienz would interfere in a law enforcement investigation or reveal confidential sources, in order to fall within the exemption of Public Officers Law § 87 (2) (e). Nor would the determination that Di Rienz abused his official authority in obtaining information for petitioner’s personal use fall within the privacy exemption of FOIL, since it was not a disclosure of employment history (Public Officers Law § 89 [2] [b] [i]) nor, presumably, "information of a personal nature” (Public Officers Law § 89 [2] [b] [iv] [emphasis supplied]; see, Matter of Capital Newspapers v Burns, supra, at 569-570). Moreover, the requirements were sufficiently particularized and identified as a specific document in the possession of respondents so as not to justify refusal under Public Officers Law § 89 (3) (cf, Matter of Newsday, Inc. v New York City Police Dept., 133 AD2d 4, 5; Matter of Gannett Co. v James, supra, at 745).
It follows from the foregoing that the only remaining ground arguably supporting nondisclosure of the final disposition of the Di Rienz disciplinary proceeding is the exemption found in Public Officers Law § 87 (2) (a) for records specifically nondisclosable under another statute, in this case, Civil Rights Law § 50-a (1). The latter section, providing for the confidentiality of personnel records of police officers "used to evaluate performance” has, however, been authoritatively given a narrow construction insofar as it may be applied to exempt documents from disclosure under FOIL. It has been held that Civil Rights Law § 50-a is only intended to prevent access to police personnel records by criminal defense attorneys or other adversarial counsel for purposes of harassment of the police on cross-examination or otherwise in the context of a civil or criminal action (Matter of Capital Newspapers v Burns, supra, at 568-569). Therefore, "section 50-a should not be construed to exempt [police personnel records] from disclosure by the police department in a nonlitigation context under Public Officers Law § 87 (2) (a)” (supra, at 569). Concededly, petitioner is no longer the subject of a criminal proceeding and has not commenced any civil litigation directly involving Di Rienz. Consequently, although the record contains some suggestion that petitioner seeks disclosure in contemplation of future litigation, we read Matter of Capital Newspapers v Burns (supra) as barring exemption under FOIL unless and until a lawsuit is commenced. Our decision in this regard is without prejudice to any remedy Di Rienz may have to pre*55vent petitioner’s use of the documents obtained hereby, should litigation be initiated.
Casey, J. P., Weiss, Yesawich, Jr., and Mercure, JJ., concur.
Judgment modified, on the law, without costs, by directing respondents to release to petitioner the document or decision constituting the final determination of respondent Division of State Police in the matter of the disciplinary action taken against Investigator Anthony Di Rienz, as described in the petition, and, as so modified, affirmed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902879/ | OPINION OF THE COURT
Asch, J.
After attending a concert at Avery Fisher Hall, plaintiff Ceil Harris boarded a bus at the corner of 63rd Street and Columbus Avenue. The bus was crowded and plaintiff alleged that she was forced to stand in the front, next to a handrail near the windshield of the vehicle, with a crowd of people pressing behind her. According to the plaintiff, the bus traveled at a high rate of speed and then suddenly stopped, causing the plaintiff to be thrown into the handrail with the crowd thrown against her. As a result, plaintiff claims that she broke three ribs and suffered a massive hematoma which required surgery. Although the plaintiff claims she gave the details of the accident to a police officer who assisted her and who gave her his name and shield number on a piece of paper, no aided report was ever filed nor did the plaintiff ever provide this information to the defendant. Plaintiff, in response to a request for witnesses from the defendant, claimed she was the sole witness.
Defendant then moved for summary judgment, which was granted by the IAS court in reliance upon Mystal v New York City Tr. Auth. (App Term, 1st Dept, No. 82-647). The court found that plaintiff’s affidavit asserting the bus came to a sudden short stop, standing alone, was insufficient to make out a prima facie case of negligence, since there appeared to be no other evidence to support it.
After motion for renewal and reargument was made by the plaintiff, the court granted renewal but adhered to its original decision, holding that the fact that no-fault payments were made by defendant to plaintiff did not provide the necessary corroboration that the sudden stopping of the bus was so forceful or unusual as to give rise to an actionable claim.
Summary judgment should properly be granted in negligence cases only in rare instances "since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination” (Ugarriza v Schmieder, 46 NY2d 471, 474).
The case before us was not such a rare instance.
"Proof that a conveyance came to a sudden stop without showing that it was unusually violent or that there was more *58than the usual and ordinary jerk incident thereto is not sufficient to establish negligence in an action by a passenger for injuries * * *
"Evidence that a streetcar or bus made a sudden, unusual, and violent stop resulting in injury to a passenger has been held to make out a prima facie case of negligence requiring the carrier to come forward with some credible proof to explain the reason and necessity for such sudden, unusual, and violent stop.” (17 NY Jur 2d, Carriers, § 471, at 543-544.)
No "hard and fast” rule can be formulated as to precisely what amount of jerking or jolting of a streetcar or bus will give rise to an inference of negligence and, conversely, what amount of such jerking or jolting is usual and ordinary, incidental to the operation of such vehicle. "Sudden jerks and jolts in the movement of railroad trains or street-cars are generally accepted as among the usual incidents of travel, which every passenger by experience has learned to expect to some extent. At precisely what point such violent movements lose their character as incidents reasonably to be expected during the course of travel and assume the status of actionable negligence is a question of fact to be determined in the light of the surrounding circumstances.” (Annotation, Motor Carrier’s Liability for Injury to Passenger by Sudden Stopping, Starting, or Lurching of Conveyance, 57 ALR2d 5, § 1, at 11.)
In an action where there were no vacant seats and a young boy, forced to stand on the rear platform of a train, was thrown violently against a gate on the platform by an unusually violent lurch or jerk of the train, which caused the railing to give way and the plaintiff to fall to his death, the Court of Appeals found that an issue of fact existed with regard to the negligent operation of the train and reversed a directed verdict for the defendant: "Whether the jerk or lurch was unusual and violent or the contrary was sharply contested and raised a question of fact. If out of the ordinary and unusual, the sudden jerk was evidence warranting the imputation of negligence in the operation of the train (Gardner v. Central Park, North & East River R. R. Co., 218 N.Y. 753; Futoranski v. Nassau Electric R. R. Co., 227 N.Y. 638).” (Trudell v New York R. T. Corp., 281 NY 82, 85.)
Accordingly, recovery may be had by the plaintiff if the movement of the vehicle is unusual or violent. What is the quantum of proof necessary to establish a prima facie case on this issue however?
*59The doctrine espoused in Mystal (supra), that there must be other proof of acts or physical facts to warrant a finding that the conveyance was propelled forward with unusual or unnecessary force beyond the plaintiffs "naked statement”, stems from language in Taylor v Westchester St. Transp. Co. (276 App Div 874), where the Second Department opined that: "[T]he testimony of the respondent that the bus 'lurched forward’ and that it 'snatched forward,’ without other tangible proof that the bus was propelled forward with unusual or unnecessary force, and without other evidence of acts or of physical facts to warrant such a finding, was insufficient to establish negligence upon appellant’s part. (Dwyer v. Auburn & Syracuse Elec. R. R. Co., 131 App. Div. 477, 479; Waddy v. Brooklyn Heights R. R. Co., 156 App. Div. 30, 31; Weinmann v. Murray, 256 App. Div. 1109; Fish v. Brooklyn & Queens Tr. Corp., 246 App. Div. 843; Quinn v. Colonial Motor Coach Corp., 266 N. Y. 584; Johnson v. Berkshire St. Ry. Co., 292 Mass. 311.)”
That case, however, did not involve a motion for summary judgment but, instead, reversed a verdict rendered after trial. It appears to place upon the plaintiff an unusual burden of proof in a negligence case. Thus, the Appellate Term in Mystal (supra), as noted, found that corroboration of the plaintiffs testimony is required to make out a prima facie case. However, a fair reading of Taylor (supra) shows that reliance upon the language quoted above has been distorted in requiring such "corroboration”. Further, the facts and the cases cited in Taylor stand only for the reasonable proposition that the plaintiff must demonstrate at trial that the movement of the vehicle was something out of the usual and ordinary. A mere characterization by the plaintiff that the movement of the vehicle was unusually violent is too general and indefinite in the absence of any other supporting evidence. However, the cases relied upon do not require a higher degree of proof in this type of case as opposed to other negligence cases.
Thus, in Dwyer v Auburn & Syracuse Elec. R. R. Co. (131 App Div 477, supra), a verdict in favor of the plaintiff was set aside where the evidence showed that the plaintiff, who knew the usual stopping place of the streetcar, attempted to alight when the car had not yet reached that stopping place. The Fourth Department found there was no evidence of negligence by the motorman in the operation of the car, noting that descriptions that the car " 'went ahead with a jerk * * * *60quite a jerk’ ” and that it started up with a "lurch and jerk” were "too indefinite and general” to establish such negligence on the part of the motorman (supra, at 479). Although the court added that "[w]hen the charge is that the car was negligently operated in that it was suddenly propelled forward with unusual and unnecessary force tangible proof of such force should be given, instead of the characterization of the witness, which may be exaggerated beyond the actual occurrence” (supra, at 480), the actual description of the force as characterized by the witnesses in that case was not an unusual or unnecessary one, as recognized by the court, which remanded for a new trial.
In Waddy v Brooklyn Hgts. R. R. Co. (156 App Div 30, supra), the court again set aside a verdict for the plaintiff after trial, and ordered a new trial. The evidence showed that the car in which the plaintiff was riding was decelerating as it passed around a "loop” to reach its stopping point, and the plaintiff should have known from his own past experience that the train would first decelerate and then accelerate. Therefore, the court found that although plaintiff was thrown off the streetcar, there was no violent, unusual starting up of the car that caused the fall.
In Weinmann v Murray (256 App Div 1109, supra), on the other hand, the Second Department reversed a judgment dismissing a complaint where there was evidence that other passengers in a conveyance were thrown about and that there was a hissing sound from which it could be inferred that the air brakes had been applied violently. The court found this evidence presented a jury question as to whether the defendant was negligent. It distinguished cases where passengers were moving about in a train at the time of a claimed sudden jerk or cases in which there was no evidence that other passengers were thrown about.
In Fish v Brooklyn & Queens Tr. Corp. (246 App Div 843, supra), where the dismissal of a complaint at the close of the entire case was upheld, the sparse facts given simply note that the plaintiff fell to the floor of a trolley car, as he was moving in the direction of the door, when "the car stopped suddenly” (supra). Thus, it appears that plaintiff failed to show unusual violence in the stop.
Similarly, in Quinn v Colonial Motor Coach Corp. (266 NY 584, supra), the Court of Appeals reversed the Appellate Division and Trial Term and dismissed the complaint where *61the only evidence was plaintiffs testimony that a violent lurch of the bus caused his arm to move from the open window of the bus and strike some hard object outside.
In Newell v Brooklyn Bus Corp. (280 NY 650), the plaintiff was the sole witness on her behalf. She testified that as she stepped down to get off a bus, it " 'jerked suddenly’ ”, causing her to fall. A verdict in her favor was affirmed, indicating that the testimony of the plaintiff alone can be sufficient to establish a cause of action.
The law as presented in Taylor (supra), and the other cases cited by it and by the IAS court herein, indicates only that a cause of action in favor of the plaintiff should not be sustained where there is no evidence other than a plaintiffs characterization of the movement of the vehicle as a "lurch” or "jolt” or sudden stop, where such "lurch” is not unusual, but, in fact, should have been anticipated. These cases should not be interpreted to require plaintiff to produce other witnesses to the accident, which would be an unnecessary and unreasonable burden in establishing a prima facie case.
In addition, none of the cases discussed herein concerned the grant of summary judgment prior to the presentation of plaintiffs proof at trial.
The plaintiff here has done more than to merely characterize the stopping of the bus as sudden and unexpected. She stated in her affidavit that the vehicle was traveling at a very high rate of speed when it came to a sudden, unusual and violent stop. She further alleged that a crowd of people standing behind her was thrown against her by the sudden stop, crushing her against the railing. Thus, she was not the only person on the bus who was affected by the sudden stop. The force of the propulsion of plaintiff into the railing in the vehicle, caused by the movement of the crowd because of the sudden stop, was apparently great enough to crush plaintiffs ribs. In addition, whether or not the bus was permitted to become overcrowded raised another issue with respect to defendant’s negligence (see, Ligon v International Ry. Co., 269 App Div 809).
Accordingly, plaintiff succeeded in raising issues which cannot be decided upon the motion for summary judgment, but must await a plenary resolution.
Although defendant attacks the credibility of plaintiff, whether or not her allegations are true is for a jury to decide, not a court upon a summary judgment motion.
*62Accordingly, the appeal from the order of the Supreme Court, New York County (David B. Saxe, J.), entered March 31, 1987, which granted defendant’s motion for summary judgment, should be dismissed as superseded, without costs. The order of the Supreme Court, New York County (David B. Saxe, J.), entered May 26, 1987, which granted renewal and reargument, and upon renewal and reargument adhered to the original determination, should be modified, on the law, solely to the extent of denying defendant’s motion for summary judgment, and otherwise affirmed, without costs or disbursements.
Sandler, J. P., Sullivan, Milonas and Smith, JJ., concur.
Order, Supreme Court, New York County, entered on May 26, 1987, unanimously modified, on the law, solely to the extent of denying defendant’s motion for summary judgment, and otherwise affirmed. The appeal from the order of said court entered on March 31, 1987 is unanimously dismissed as superseded by the appeal from the order entered on May 26, 1987, all without costs and without disbursements. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902880/ | OPINION OF THE COURT
Yesawich, Jr., J.
Section 210 of the Public Utility Regulatory Policies Act of 1978 (hereinafter PURPA) (16 USC § 824a-3) was enacted to foster the development of cogeneration and small power production facilities and thereby reduce this country’s dependence on fossil fuels (see generally, Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424, 431, appeal dismissed 470 US 1075) by, inter alia, authorizing the Federal Energy Regulatory Commission (hereinafter FERC) to prescribe rules requiring electric utilities to purchase electric energy from such facilities (see, 16 USC § 824a-3 [a] [2]). Similarly, Public Service Law § 66-c encourages the development of alternative energy sources by directing respondent Public Service Commission (hereinafter PSC) to enjoin electric corporations to purchase or transmit electricity from such alternative energy production facilities, with the additional stimulus of a 6 cent per kilowatt hour minimum sales price.*
Respondent Shawmut Engineering Company, Inc. proposed construction of a 17-megawatt waste-to-energy facility in Erie, Pennsylvania, which qualifies for the above-noted mandatory power sales. In December 1984, Shawmut initiated negotiations with petitioner for the purpose of effecting an agreement by which petitioner would purchase its electricity output. PSC initially approved a 15-year contract which priced electricity based upon petitioner’s estimated long-run avoided costs (i.e., the amount it would cost petitioner to generate the energy had the purchase not been made) contingent upon Shawmut demonstrating that it could "wheel” (transmit electricity through intervening utilities’ transmission facilities) its power to petitioner. Almost immediately thereafter, petitioner sought to have PSC recalculate its avoided costs to reflect a drop in oil prices and lower than expected inflation. PSC granted this petition in substantial part except that the "settlement rates” (that is, the estimate of petitioner’s long-*66run avoided costs agreed upon by petitioner and parties interested in entering into long-term contracts for supplying on-site generation capacity, which had previously been endorsed by PSC) would still apply to certain hydroelectric facilities and all prior contracts and orders.
On April 9, 1986, PSC approved an agreement between Shawmut and petitioner incorporating the settlement rates, on condition that Shawmut’s facility be in service by December 31, 1987. Failure to meet that deadline would subject Shawmut to the new and lower rates established in PSC’s Opinion No. 86-8, rendered March 27, 1986, wherein PSC adopted long-run avoided cost estimates for the major utilities in New York and also set forth several standardized contract options under which independent power producers would be entitled to enter into long-term contracts with utilities such as petitioner. Because its financing was based upon the higher settlement rates—it had spent over $2.6 million on the design and permitting process, incurred $900,000 in closing costs, and obtained $70 million in tax-exempt bond proceeds, all in reliance on those rates—Shawmut petitioned for rescission of the 1987 commencement date, which it could not meet. In the alternative, Shawmut proposed a doubling of the contract period to 30 years, during the first 15 of which the settlement rates would apply with a 6 cent per kilowatt hour minimum (see, Public Service Law § 66-c); during the second 15 years the rates would be reduced to pay down the amount by which the settlement rates resulted in an overpayment (estimated by PSC at $132 million) when compared to the new rates in Opinion No. 86-8, plus interest, until the overpayment was reconciled, at which point Shawmut would deliver electricity at 95% of petitioner’s actual avoided costs for the remainder of the 30-year period. By order dated September 3, 1986, PSC directed petitioner to enter into a contract with Shawmut spanning 30 years, with above avoided cost payments for 15 years based upon the original contract but including the statutory 6 cent minimum rate, a cap on overpayment and provisions for repayment. The loan implicit in the front-loaded payments was to be secured by an equity interest in the plant to petitioner, together with a right to operate it to effect repayment. Failure by Shawmut to obtain a wheeling agreement for the second 15-year period of the contract would trigger a default on the advance payments made by petitioner. Petitioner applied for a rehearing, which PSC subsequently denied, and in the meantime, petitioner, under protest, sub*67mitted a contract largely conforming to PSC’s order which was ultimately approved.
Petitioner commenced this CPLR article 78 proceeding challenging PSC’s denial of its rehearing application and the underlying order itself on the grounds that PSC (1) acted arbitrarily in approving modifications to the contract, (2) violated the State Environmental Quality Review Act (hereinafter SEQRA) (ECL 8-0109), and (3) unlawfully extended the benefits of Public Service Law § 66-c to an out-of-State facility. Penntech Papers, Inc. was granted leave to intervene as a party respondent. Supreme Court dismissed the petition (137 Mise 2d 235) and petitioner appeals; we affirm.
PSC is charged with acting arbitrarily because it provided Shawmut with a contract substantially more favorable than the standard options contained in its Opinion No. 86-8 without explaining the "special circumstances” that justify the unique and arguably preferential treatment accorded Shawmut. However, in that very opinion, PSC acknowledged that "standard terms cannot practically be tailored to meet the needs of every potential developer”. It is clear from the record that the Shawmut project entails a significant amount of risk, and PSC, in carrying out the mandate of Public Service Law § 66-c to encourage development of alternative energy production facilities, determined that the propagation of the technology to be utilized at the Shawmut plant—the first of its kind to be used in this country—warrants the individualized treatment needed to get such a project off the blackboard and into production.
As noted by PSC, if this project is successful, ratepayers will benefit in the future from cheaper electricity that will more than offset the above avoided-costs rates paid during the first half of the contract, in addition to having a new and innovative garbage-to-energy domestic power supply technology. Furthermore, PSC’s authorization of front-loaded pricing contracts of the type employed here are not uncommon in the case of hydroelectric facilities. That PSC is keenly aware that front-loaded contracts subject the purchaser, ultimately ratepayers, to the peril that the facility may never be capable of producing electricity at rates less than or equal to avoided costs is apparent from the agreement PSC ordered petitioner to enter into, for it capped the extent of the advanced payment to an amount equal to the asset value of the Shawmut facility and also gave petitioner a security interest in the plant with the option of possessing and operating it until *68repayment was accomplished. Petitioner’s dissatisfaction with the adequacy of its repayment security, though understandable, does not, as Supreme Court observed, warrant a court substituting its judgment for that of the agency, where, as here, it has not been shown that the manner in which PSC exercised its judgment was irrational (see, Matter of New York State Council of Retail Merchants v Public Serv. Commn., 45 NY2d 661, 672). Like petitioner, we too would have preferred that PSC more thoroughly spelled out the calculus it employed in making a determination that a particular facility should be granted special contract terms so that affected individuals can plan and negotiate accordingly (see, Matter of Health Related Nutrition Servs. [Roberts], 123 AD2d 466, 467), but since its decision in this instance is not so cryptic or conclusory that the basis of its determination cannot be discerned (cf., Matter of Long Is. Light. Co. v Public Serv. Commn., 137 AD2d 205, 211; Matter of Long Is. Light. Co. v Public Serv. Commn., 134 AD2d 135, 149), judicial intervention is inappropriate.
Similarly unpersuasive is petitioner’s contention that PSC may not extend the benefit of the 6 cent per kilowatt hour minimum rate provided for in Public Service Law § 66-c to out-of-State facilities. Significantly, the language of the statute empowering PSC to compel "any” electric utility to purchase energy from "any” alternative energy production facility does not contain an express geographic limitation. While petitioner urges that because "any” electric utility must refer only to utilities over which PSC exercises jurisdiction, "any” alternative energy production facility necessarily means one within New York, we find it more plausible to read the statute as applying to "any” entity providing energy to New York ratepayers. This interpretation is in keeping with the declared purpose of the legislation, namely, to decrease dependence upon traditional fuels and not, as petitioner suggests, to promote in-State utilities to the exclusion of out-of-State utilities. Indeed, the latter approach may well violate the Commerce Clause of the US Constitution (US Const, art I, § 8 [3]; see, Philadelphia v New Jersey, 437 US 617, 626-627).
Finally, petitioner maintains that PSC failed to comply with SEQRA and its own policies on environmental analysis by ordering a contract modification without first demanding an environmental impact statement. Parenthetically, we note that PSC’s challenge to petitioner’s standing to advance this argument has considerable merit but was not raised in the *69first instance and hence was waived (see, Matter of Fosella v Dinkins, 66 NY2d 162, 167). Instead, PSC proceeded to the merits and quite correctly concluded that approval of a contract to purchase electricity is not an "action” as defined in ECL 8-0105 (4). This approval is neither a permit to construct nor funding of the Shawmut facility (see, ECL 8-0105 [4]; 6 NYCRR 617.2 [b]). Although approval of an acceptable contract was undoubtedly integral to the acquisition of financing for the Shawmut facility, such a contention is too attenuated from the actual financing to be considered an action within the meaning of SEQRA. We find no merit in petitioner’s remaining contention that PSC did not follow its own environmental review requirements.
Casey, J. P., Weiss, Levine and Mercure, JJ., concur.
Judgment affirmed, with one bill of costs.
It should be noted that although FERC issued a decision on April 14, 1988 holding that States may no longer impose a rate exceeding avoided cost on purchase of power, this appeal is not affected because the application of the ruling is prospective only (1988 FERC Order on Petition for Declaratory Order, No. EL87-53-000, at 23) (see, Matter of Long Is. Light. Co. v Public Serv. Commn., 137 AD2d 205, 209). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902881/ | Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered September 7, 2011, which granted defendants’ motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied. Order, same court and Justice, entered September 6, 2011, which denied plaintiffs motion seeking declaratory relief, unanimously affirmed, without costs.
This case involves a dispute between two sets of creditors, senior lenders (plaintiff) and junior or mezzanine lenders, as to who has priority to payments personally guaranteed by defendants Lightstone and Lichtenstein but capped at $100 million, under loan and guaranty agreements (made to both sets of lenders) and an intercreditor agreement (IC Agreement), in the event of default by the borrowers.
There are provisions in the various agreements, all of which *459were executed on the same day, that are not fully consistent with each other. “It is a cardinal rule of contract construction that a court should avoid an interpretation that would leave contractual clauses meaningless. Stated otherwise, [c]ourts are obliged to interpret a contract so as to give meaning to all of its terms” (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 6 [1st Dept 2004] [internal quotation marks and citation omitted]).
Here, while the court correctly found that the guaranty claims were excluded from the general subordination provisions of the IC Agreement, section 6 (b), which specifically applies to guaranty claims, still allows junior lenders to collect on such claims only if the senior lender is not also exercising rights against the guarantors. Section 6 (b), however, provides an exception to the limit on a junior lender’s right to enforcement, so long as the right is being exercised in connection with any junior lender pursuing its rights under section 15 (q) of the IC Agreement.
Pursuant to section 15 (q), which applies “[f]or as long [as] any Junior Loan remains outstanding,” Senior lender and junior lenders agreed that the $100 million guaranty cap “shall be applied on a ratable pro rata basis among each of the junior loans,” and that, “[notwithstanding anything to the contrary which may be contained in th[e] [IC] Agreement,” each junior lender could commence and prosecute a guaranty claim, as well as retain any recovery therefrom, so long as it complied with section 15 (q).
The parties agree that there was only one guaranty pot, and that it was capped at $100 million. Thus, if the junior lenders are correct and section 15 (q) constituted a waiver by the senior lender of its rights to any claim on the guaranty cap, then section 6 (b)’s guaranty cap subordination language is superfluous. If, however, the senior lender is correct and section 15 (q) applies only to junior lenders, then that section’s language allowing junior lenders to actually collect guaranty claim monies is rendered superfluous. Moreover, while it may be true that section 15 (q) could reference only those amounts the junior lenders are entitled to collect when all of senior lender’s debts have been satisfied, the junior lenders’ interpretation—that senior lender contracted away its right to the guaranty cap—is equally plausible.
Because the IC Agreement’s clauses concerning the lenders’ rights to prosecute and collect on guaranty claims are “ambiguous, [they] cannot be construed as a matter of law, and dismissal . . . [was] not appropriate” (China Privatization Fund *460[Del], L.P. v Galaxy Entertainment Group Ltd., 95 AD3d 769, 770 [1st Dept 2012] [internal quotation marks omitted]).
Furthermore, no reading of the IC Agreement gives the junior lenders an exclusive right to bring claims against the guarantors, or granted them exclusive rights to the guaranty cap. Accordingly, the motion court erred in finding that plaintiff lacked standing to bring its claims against the guarantors.
We have considered the remaining arguments and find them unavailing. Concur—Tom, J.P., Andrias, Freedman, Roman and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902882/ | OPINION OF THE COURT
Mercure, J.
Claimant contends that his employment was terminated on March 17, 1977 because he sustained a compensable injury. Workers’ Compensation Law § 1201 forbids employers from discharging or otherwise discriminating against employees who claim compensation for job-related injuries or who testify in proceedings to enforce such payment (see, Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 5). Its violation subjects the employer to a statutory penalty and entitles the mistreated employee to be reinstated and reimbursed for any wages lost as a result of the discrimination2 (supra).
Claimant filed a claim pursuant to section 120 on January 28, 1986, nearly nine years following his discharge. At that time and until the 1987 amendment to section 120 (see, L 1987, ch 436), no specific Statute of Limitations was provided for the filing of section 120 claims. Section 120 as amended, applicable to discharges or discrimination occurring on and after October 25, 1987 (see, L 1987, ch 436, § 2), provides that "[a]ny complaint alleging * * * an unlawful discriminatory practice must be filed within two years of the commission of such practice”. Following a hearing, a Workers’ Compensation Law Judge dismissed the claim upon the ground that it was untimely filed pursuant to CPLR 213 and 214. The Workers’ Compensation Board modified that determination, holding that neither the provisions of CPLR article 2 nor Workers’ *72Compensation Law § 28 were applicable, but that claimant had ample opportunity to file a discrimination claim and that filing the claim almost nine years after the alleged violation was prejudicial to the employer. Claimant was accordingly found guilty of laches and the claim was disallowed. Claimant appeals.
The Board correctly determined that the CPLR does not apply to section 120 claims. The courts have repeatedly held that a proceeding under the Workers’ Compensation Law is not an action or special proceeding under the CPLR (see, CPLR 101) or the former Civil Practice Act, but a statutory proceeding having its own rules as to limitations (see, Matter of Decker v Pouvailsmith Corp., 252 NY 1, 6; Matter of Luoma v Spearin, Preston & Burrows, 282 App Div 612, 615, affd 307 NY 728; see also, Matter of Fiedelman v New York State Dept. of Health, 58 NY2d 80, 82-83). Accordingly, Statutes of Limitation set forth in the CPLR will not be applied to claims arising under the Workers’ Compensation Law.
We further conclude that the two-year Statute of Limitations of section 28 does not bar the claim. That section, by its very terms, applies to claims for compensation and fixes the date of the accident or death as the commencement of the limitations period. It is an unlawful discriminatory practice, an entirely different occurrence, which precipitates a section 120 claim. We are constrained to find that at the time of the filing of this claim there was no Statute of Limitations applicable to section 120 claims, a view amply supported by the Legislature’s subsequent amendment of the section so as to provide a limitations period.
In our view, the doctrine of laches, generally applicable only in suits in equity (see, 36 NY Jur, Limitations and Laches, § 154, at 141-142), may be applied in proceedings under the Workers’ Compensation Law (see, e.g., Matter of Carney v Newburgh Park Motors, 84 AD2d 599, 600; Matter of Kinsey v Union Free School Dist. No. 1, 63 AD2d 1097, 1098, lv denied 46 NY2d 713; cf., Matter of Sinacore v Dreier Structural Steel, 97 AD2d 659; Matter of Parietti v Dellwood Country Club, 91 AD2d 806), provided that the remedy is equitable in nature (see, Matter of Milletich v International Term. Operating Co., 57 AD2d 660, 661, lv denied 42 NY2d 810). The remedy under section 120 of reinstatement to prior employment, taking the form of a mandatory injunction, is clearly equitable in nature.
*73Neglect to assert a right for an unreasonable and unexplained length of time, accompanied by other circumstances causing prejudice to an adverse party, operates as a basis for the doctrine of laches (see, 36 NY Jur, Limitations and Laches, § 154, at 142-143). Mere delay, however long, without the necessary elements to create an equitable estoppel, does not preclude the granting of equitable relief (see, Weiss v Mayflower Doughnut Corp., 1 NY2d 310, 318; Marcus v Village of Mamaroneck, 283 NY 325, 332; Kraker v Roll, 100 AD2d 424, 432). Whether the doctrine is applicable depends on the facts of each case, and a significant factor is whether a claimant has inexcusably delayed in asserting his rights, while to his knowledge the opposing party has changed its position to its irreversible detriment (Groesbeck v Morgan, 206 NY 385, 389; Orange & Rockland Utils, v Philwold Estates, 70 AD2d 338, 343, mod 52 NY2d 253).
Our review of the record discloses no evidence to support the Board’s finding that the employer was prejudiced by claimant’s delay in filing the claim. In fact, no representative of the employer testified at the hearing before the Workers’ Compensation Law Judge. Considering that the issue of laches was not raised prior to the Board’s determination, the absence of proof on the issue is not surprising. Because the Board’s determination of the administrative appeal on a ground not previously raised or considered deprived the employer of an opportunity to present evidence on the question of prejudice, we must reverse and remit for a further hearing on that issue (see, Matter of Rosenthal v Zarkin Mach. Co., 40 AD2d 745).
Mahoney, P. J., Casey, Weiss and Levine, JJ., concur.
Decision reversed, with costs against the employer, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this court’s decision.
. All statutory references shall be to the Workers’ Compensation Law unless indicated to the contrary.
. Section 120 was amended effective October 25, 1987 (see, L 1987, ch 436) so as to add lost compensation benefits to the damages recoverable by a claimant. The former law applies here. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902884/ | OPINION OF THE COURT
Ross, J.
This appeal presents us with the issue of whether, in a Family Court juvenile delinquency proceeding, a newspaper reporter’s notes, which are not in the possession of the Presentment Agency, constitute Rosario material, which the Presentment Agency is required to obtain, in order that it can turn those notes over to defense counsel.
The Corporation Counsel of the City of New York (CC), which is a Presentment Agency (see, Family Ct Act §§ 254, 301.2), filed, on January 14, 1988, in the Family Court, Bronx *79County, a juvenile delinquency petition against respondent 14-year-old Ms. Gina C. (respondent). Specifically, this petition charged that, on October 23, 1987, at approximately 8:15 a.m., in the vicinity of Bruckner Boulevard and East Tremont Avenue, in Bronx County, respondent assaulted Ms. Vennie Greene (Ms. Greene), and, that is an act, which, if committed by an adult, would constitute the crime of assault in the third degree (Penal Law § 120.00). In support of this petition, victim Ms. Greene submitted a deposition, in which she claimed that respondent, together with others, pushed her to the ground, scratched her face, and kicked her in the side of her body, which resulted in a bruised right hip.
Ms. Shira R. Weinstein (Ms. Weinstein), who represented the CC (Presentment Agency) in this proceeding against respondent, stated, in an affirmation dated January 14, 1988, that "Based on information and belief supplied by the case file and conversations with the arresting officer this incident is a racially motivated attacked [sic] * * * [and due] to the nature of this incident, there has been media coverage and community involvement”. Furthermore, Ms. Weinstein contended in her affirmation that "Police Officer Charles McCardle * * * advised [her] that the complainant [Ms. Greene] was interviewed by various newspapers as well as community officials in relation to this incident”.
In the December 29, 1987 issue of the Village Voice (The Voice) appeared an article, entitled "Chokehold at Throgs Neck Black Teens Attacked Again at Bus Stop”, which was written by free-lance reporter Ms. Lynnell Hancock (reporter).
Our examination of a copy of the subject article indicates that in it the reporter quoted complainant victim Ms. Greene, as follows:
" T was waiting for the bus with about five other friends, ’says Vennie Greene * * * an eighth grader in Throgs Neck’s I.S. 192. "A city bus drove by. They were pointing at us, yelling things. The bus driver pulled over at the gas station— it wasn’t even a bus stop. About 50 of them got off,’ said Greene.
’’ ’Some girl came up behind me, and jumped me. Then five or six others came over and started hitting me too’ Greene says. ’The police came and then they ran.’ ”
Family Court Act § 331.4 (1) (a) requires that the Presentment Agency shall, at the commencement of the fact-finding hearing, make available to the respondent "any written or *80recorded statement * * * made by a person whom the presentment agency intends to call as a witness at the fact-finding hearing, and which relates to the subject matter of the witness’s testimony”.
In view of the fact that the Presentment Agency intended to call victim Ms. Greene as its main witness at the fact-finding hearing, and, since it has the responsibility, pursuant to Family Court Act § 331.4 (1) (a), to make available to respondent "any written or recorded statement * * * made by [Ms. Greene] * * * which relates to the subject matter of [Ms. Greene’s] testimony” (Family Ct Act §331.4 [1] [a]), the Presentment Agency, on January 14, 1988, moved in Family Court, Bronx County, pursuant to CPLR 2302 (b), for a judicial subpoena duces tecum, which sought from The Voice "All records, original notes, transcripts and tape recordings relating to an assault by [respondent] Gina [C.] against Vennie Greene on October 23, 1987, now in your custody or control.”
Since Family Court Act § 331.4 (1) (a) is based on the Court of Appeals decision in the case of People v Rosario (9 NY2d 286 [1961], rearg denied 9 NY2d 908, 14 NY2d 876, 15 NY2d 765, cert denied 368 US 866 [1961]), the Presentment Agency concedes that its motion to subpoena The Voice’s records was done out of caution. Therefore, in her affirmation, Ms. Weinstein stated "[Qailure to produce material within the parameters of the Rosario rule constitutes a per se error, and any conviction obtained must therefore be reversed. People v. Ranghelle, [69 NY2d 56 (1986)] * * * People v. Jones, [70 NY2d 547 (1987)]. People v. Perez, 65 NY 2d 154”.
Prior to the Court of Appeals decision in People v Rosario (supra) a defendant in a criminal trial was only entitled to see prior statements, including Grand Jury testimony, of a prosecution witness for the purpose of cross-examination of such witness, if, after inspection, the trial court found that those statements or Grand Jury testimony "contained material at variance with the testimony given by the particular witness on the stand” (People v Dales, 309 NY 97, 103 [1955]).
Subsequently, in 1961, the Court of Appeals in People v Rosario (supra) enlarged the discovery right of a criminal defendant, by imposing upon the prosecutor the duty to turn over, after a prosecution witness had completed direct examination and without prior inspection by the trial court, to the defendant, copies of prior statements, and Grand Jury testimony, if any, of such prosecution witness. In pertinent part, *81the Court of Appeals in People v Rosario, (supra, at 289) stated: "The procedure to be followed[, as to the time when prior statements, including grand jury testimony, of prosecution witnesses should be given by the prosecution to the defense,] turns largely on policy considerations, and upon further study and reflection this court is persuaded that a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves[, without prior trial court inspection,] the use to be made of it on cross-examination”.
The words just quoted from People v Rosario (supra) unequivocally indicate that the Court of Appeals based its decision "upon a fairness doctrine [and] not constitutional mandates or guarantees” (People v Howard, 127 AD2d 109, 117 [1st Dept 1987]).
Our examination of People v Rosario (supra, at 289) indicates that the only statements covered by that rule in 1961 were those made "to police, district attorney or grand jury”.
Thereafter, in a number of decisions, the Court of Appeals defined the type of statements made to the police, District Attorney or Grand Jury, which are subject to the rule in People v Rosario (supra). The Court of Appeals in People v Ranghelle (69 NY2d 56, 62 [1986], supra), summarized some of those decisions, as follows: "We have periodically refined the rule to ensure that a defendant 'receives the full benefit of a [prosecution] witness’ statements for impeachment purposes’ (People v Poole, 48 NY2d 144, 149). Thus, for example, in People v Malinsky we extended Rosario’s disclosure requirement to apply to statements of prosecution witnesses testifying at suppression hearings, and we held that the Rosario rule covers the notes of a police officer witness made in connection with defendant’s arrest (see, People v Malinsky, 15 NY2d 86, 90-91; see also, People v Gilligan, 39 NY2d 769, 770 [notes and reports of investigating officers]). In People v Consolazio, we held that prosecutor’s worksheets are Rosario material subject to disclosure reasoning that '[t]he character of a statement is not to be determined by the manner in which it is recorded, nor is it changed by the presence or absence of a signature’ (People v Consolazio, 40 NY2d 446, 453). Most recently we applied the Rosario rule to taped statements made by a *82prosecution witness to private parties where the tapes were in the possession of the prosecution (People v Perez, 65 NY2d 154, 158-159, supra)”.
In 1976, the Court of Appeals in Matter of Kelvin D. (40 NY2d 895, 896 [1976]) made the disclosure rule in People v Rosario (supra) applicable to Family Court juvenile delinquency proceedings, such as the instant case. The Court of Appeals stated, at page 896 of that decision, that the prosecution, in such proceedings, has "the duty to provide the defense, upon request, with copies of the prior statements of its witnesses”.
By Laws of 1979 (ch 412), the Legislature codified the rule in People v Rosario (supra) by adding section 240.45 to the Criminal Procedure Law (CPL). Our examination of that section of the CPL indicates that it requires a prosecutor, "After the jury has been sworn and before the prosecutor’s opening address, or in the case of a single judge trial after commencement and before submission of evidence” (CPL 240.45 [1]), to make available to the defense "Any written or recorded statement, including any testimony before a grand jury * * * made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony” (CPL 240.45 [1] [a]). In order to protect confidential material, that section makes the prosecutor’s duty to disclose "subject to a protective order”.
The language, which appears in Family Court Act § 331.4 (1) (a), which became law in 1982 (see, L 1982, ch 920), in substance, follows the language, which appears in CPL 240.45 (1), since both statutes were "adopted to formalize the procedure initially established by People v Rosario” (Matter of Rodney B., 69 NY2d 687, 688 [1986]).
Following service of the Presentment Agency’s notice of motion for the subpoena to The Voice concerning the material, identified supra, counsel for respondent joined in that motion and counsel for The Voice and the reporter opposed it.
Thereafter, counsel for the Presentment Agency, and counsel for The Voice and the reporter, by oral agreement, narrowed the scope of the requested subpoena to only "statements made by [Ms. Greene] to the reporter”. Furthermore, "[i]n his brief [to the Family Court Judge], respondent’s counsel merely [asked] for [Ms. Greene’s] statements to the reporter”.
The Family Court, in its order entered February 17, 1988, denied the motion for a subpoena of The Voice, upon the basis *83it did not have any of the subject material, and granted the motion for a subpoena of the reporter to produce the items (139 Mise 2d 203).
Subsequent to the Family Court’s issuance of a judicial subpoena duces tecum, dated February 17, 1988, to the reporter, on February 22, 1988, this court granted a stay of the subpoena, and directed an expedited appeal.
Before this appeal could be heard by this court, on March 3, 1988, the Family Court, Bronx County (Harry J. Lynch, J.), entered an order, which adjourned the petition in this case, in contemplation of dismissal, and directed respondent to perform 20 hours of community service under the supervision of the Probation Department.
After the Family Court order of March 3rd, the Presentment Agency moved in this court for an order directing the appointment of amici curiae to support the Family Court’s issuance of a judicial subpoena duces tecum to the reporter, since the Presentment Agency now supported the reporter’s position, that the material sought was not required to be produced under People v Rosario (supra). Also, at about the same time, the Gannett Co., Inc., CBS, Inc., National Broadcasting Company, Inc. and The Conde Naste Publications Inc. (news gathering organizations) moved for leave to file an amici curiae brief in support of the appellant reporter (appellant). By order, entered March 15, 1988, this court denied the motion of the Presentment Agency, and granted the motion of the news gathering organizations.
Although, as mentioned supra, appellant has filed a notice of appeal, she has not sought leave to appeal. Since there is neither an order of disposition nor a final order in this matter, we find there is no appeal as of right herein (see, Family Ct Act § 1112; Firestone v Firestone, 44 AD2d 671, 672 [1st Dept 1974]). Furthermore, it has been held that a Family Court order directing a party to produce certain items is not appealable as of right (Bohen v Auerbach, 51 AD2d 542 [1976]). However, due to the significance of the issue presented, we will treat the notice of appeal as an application for leave to appeal, and grant such application nunc pro tunc (see, Matter of Bush v Pierce, 65 NY2d 1013 [1985]).
Even though the matter against respondent, as mentioned supra, was adjourned in contemplation of dismissal, pursuant to Family Court Act § 315.3 (1), a proceeding adjourned in that manner may be restored to the calendar *84"Upon ex parte motion by the presentment agency, or upon the court’s own motion, made at the time the order is issued or at any time during its duration”. Therefore, we find that this matter is not moot, since we have not been informed that it has been actually dismissed.
At page 5 of the appellant’s brief to this court, she states, in pertinent part, "All materials sought by the subpoena were prepared by [me] in the course of [my] newsgathering for the Article and are in the sole custody, possession and control of [myself]”. Since the record indicates that appellant did not gather this material at either the direction of the Presentment Agency or any other law enforcement agency, and, that this material has never been in either the possession of the Presentment Agency or any other law enforcement agency, we find that it is not subject to the rule of People v Rosario (supra) (see, People v Reedy, 70 NY2d 826, 827 [1987]; People v Alvarez, 70 NY2d 375, 380-381 [1987]), as the common thread requiring the prosecution to produce prior witnesses’ statements, pursuant to the Rosario rule, has been that those statements were in the possession of the prosecution. The Court of Appeals stated, in People v Jones (70 NY2d 547, 550 [1987], supra): "The rule is simple and unequivocal: if the People are in possession of a statement of their own prospective witness relating to the subject matter of that witness’ testimony, defense counsel must, in fairness, be given a copy because ordinarily counsel would have no knowledge of it and no other means of obtaining it”.
Finally, as the Court of Appeals stated in People v Ranghelle (supra, at 63), the rule in People v Rosario (supra) is one of common sense. We find no justification, under the law, to impose on prosecuting agencies the burden of identifying and obtaining every statement made by a prosecution witness to the media, community leaders, or anyone else, for if such a burden were imposed, even an innocent violation of it would be a per se error, under the Rosario rule, requiring reversal. The "right sense of justice” which "entitles the defense to examine a witness’ prior statement” (People v Rosario, supra, 9 NY2d, at 289), does not mandate that the police "affirmatively gather evidence for the accused” (People v Alvarez, supra, at 381).
In fact, in a highly publicized case, with dozens (and sometimes hundreds) of newspaper, radio and television reporters covering every aspect of the pretrial investigation, it would be *85impossible not to commit error per se, if the ruling appealed from were the law.
At the time of this writing, the public is being deluged by almost daily media reports, by investigating reporters, TV newspeople, and radio reporters, all purporting to present "inside information”, relative to a crime of significant public interest.
If such a case comes to trial, it may be helpful if defense counsel could obtain all the notes in the possession of the aforementioned reporters so that they may properly defend their clients. However, to put the burden on the prosecution to obtain and deliver such notes would obviously be impossible, and most unfair, since failure to do so would be error per se.
Accordingly, order, Family Court, Bronx County (Harry J. Lynch, J.), entered February 17, 1988, which granted the motion of the Presentment Agency for the issuance of a subpoena duces tecum directing Ms. Lynnell Hancock to turn over all statements made to her by Ms. Vennie Greene (Ms. Greene) concerning an October 23, 1987 assault on Ms. Greene, is unanimously reversed, on the law and on the facts, the motion is denied, and the subpoena is vacated, without costs. Leave to appeal from the aforementioned order is granted nunc pro tunc.
Kupferman, J. P., Sullivan, Ross, Carro and Kassal, JJ., concur.
Leave to appeal from order of the Family Court of the State of New York, Bronx County, entered on February 17, 1988 is granted nunc pro tunc, and said order is unanimously reversed, on the law and on the facts, the motion is denied, and the subpoena is vacated, without costs and without disbursements. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902885/ | OPINION OF THE COURT
Mollen, P. J.
The primary issue presented by this appeal is whether Laws of 1983 (ch 755), which was enacted by the New York State Legislature in response to a request by the Town of Highlands (hereinafter the town) pursuant to NY Constitution, article IX, § 2 (b) (2) and Municipal Home Rule Law § 40, comports with the dictates of due process of law under the Federal (US Const 14th Amend) and New York State (NY Const, art I, § 6) Constitutions. The challenged legislation altered the boundaries of an established sewer improvement area within the town so as to add certain properties to the improvement area and thereby subject these properties to subsequent assessments by the town for the expenses of the sewer improvements. The owners of the affected properties, which included the petitioners, were not provided with notice of or an opportunity to be heard prior to the enactment of the subject legislation. We conclude that the challenged legislation contravenes the affected property owners’ rights to due process of law and accordingly declare that legislation to be unconstitutional and the assessments imposed thereunder to be invalid.
The facts herein are essentially undisputed. In August 1981, the Town Board of the respondent town adopted a resolution pursuant to Town Law § 209-q which established the Fort Montgomery Sewer Improvement Area and provided for the construction of a sanitary sewer system. This resolution was duly approved by the Comptroller of the State of New York. Thereafter, by 1983 it became clear to the Town Board that at the time it established the sewer improvement area, the boundary lines of the improvement area crossed lots rather than following lot lines. As a result, only a portion of some lots were included within the improvement area, thereby *88creating a situation in which only a portion of certain parcels could be assessed the benefit charges, even though the whole parcel of land would reap the benefits of the sewer improvements. Town Law § 209-q (4), under which the improvement area was established, contains a mechanism to change the boundaries of an established improvement area. That subdivision provides, however, that in the event a Town Board determines, inter alia, that any property which is not included within a sewer improvement area is benefited by a sewer improvement and that therefore the boundaries of the benefited area should be changed, the Town Board shall call a further public hearing not less than 15 nor more than 25 days after the previous Town Board hearing which established the sewer improvement area in order to change its boundaries. Since, in the case at bar, a period of approximately two years had elapsed after the previous Town Board hearing pertaining to the establishment of the improvement area, the statutory mechanism pursuant to Town Law § 209-q (4) was not available to the town.
In view of this situation, the town submitted a request to the New York State Legislature for a "special” or "home rule” law pursuant to NY Constitution, article IX, § 2 (b) (2) and Muncipal Home Rule Law § 40, to alter the boundaries of the Fort Montgomery Sewer Improvement Area so as to include the whole of the real property lots which were determined to have received a benefit from the sewer improvements. In response, the Legislature enacted Laws of 1983 (ch 755), effective July 27, 1983, which changed the boundaries of the sewer improvement area in accordance with the town’s request. This legislation had the effect, inter alia, of adding to the subject sewer improvement area certain parcels of property owned by the petitioners.
In May 1985 the Town Board, after holding a public hearing, voted to increase the monetary amount necessary to complete construction of the Fort Montgomery Sewer Improvement Area. In accordance with Town Law § 209-q (5), the town applied for and obtained the New York State Comptroller’s approval for the increase by order dated July 16, 1985. On November 12, 1985, the town adopted a resolution increasing the maximum amount to be expended, and, within 10 days, the order increasing the amount was recorded in the Orange County Clerk’s office. In November 1985 after a public hearing, the town, in accordance with the Town Law § 209-q (8) and (9), adopted the necessary resolutions to apportion the *89cost of the benefit to all the properties within the improvement area.
By notice of petition and petition dated December 5, 1985, the petitioners instituted this proceeding pursuant to CPLR article 78 against the town seeking to invalidate the proposed sewer improvement assessment against their property on the basis that the town acted in excess of its jurisdiction and in an arbitrary and capricious manner in imposing the assessments. The petitioners argued that the procedure followed by the town in altering the boundaries of the Fort Montgomery Sewer Improvement Area was improper since it was not in accordance with Town Law § 209-q (5) and they were not provided with an opportunity to be heard when the boundaries were changed. The petitioners also argued that the imposed assessments were unfair, disproportionate and illegal.
The town thereafter moved to dismiss the proceeding on the grounds that (1) the court lacked subject matter jurisdiction, and (2) the petition failed to state a claim upon which relief could be granted. The town asserted, in the first instance, that the boundaries of the subject sewer improvement area were fixed by the Legislature and, thus, the court was without jurisdiction to change the boundaries. The town further maintained that the petitioners’ bald allegations that the assessments against their property for the sewer improvements were unfair and disproportionate, were insufficient to raise an issue of fact.
By order entered April 3, 1986, the Supreme Court, Orange County (Isseks, J.), granted the motion of the town dismissing the proceeding with leave to the petitioners to replead. The court stated, inter alia: "It is clear that the proceeding herein is one to challenge not only the excessiveness of the rates which were imposed, but also to challenge the jurisdiction of the constitutionality of the acts, both of the town and the State Legislature. Since the acts of the State Legislature were not alleged in the original papers, the Court will allow the petitioner^] to replead the proceeding * * * The Court notes that an attack on a legislative act establishing a special assessment, as the case herein, would probably be brought in the form of a declaratory judgment action”.
Thereafter, the petitioners served an amended petition pursuant to CPLR article 78 again challenging the constitutionality and validity of Laws of 1983 (ch 755), and the assessments levied against their property by the town. The town again *90moved to dismiss the amended petition for lack of subject matter jurisdiction and failure to state a cause of action. The town argued that owing to the petitioners’ failure to join the State as a party to this proceeding, the court was without jurisdiction to rule on the petitioners’ challenge to the constitutionality of an act of the Legislature. Similarly, the town contended that the petitioners’ challenge to the validity of the assessments on their property, as a matter of law, did not raise an issue of fact.
By order and judgment dated September 19, 1986, the Supreme Court, Orange County (Isseks, J.), granted the town’s motion to dismiss the proceeding for failure to state a cause of action. The court stated,
"The petition states no factual basis upon which the determination of November 12, 1985 could be vacated. It presents conclusions that the assessments are unfair and illegal and [not] appropriate to the benefit received.
"In addition, it states no factual basis on which this Court could declare Chapter 755 of the laws of the State of New York of 1983 unconstitutional”.
This appeal ensued.
Preliminarily, we note that the Supreme Court’s determination that this proceeding challenges the constitutionality of a legislative enactment, and as such, was not reviewable in a proceeding brought pursuant to CPLR article 78, was correct (see, Press v County of Monroe, 50 NY2d 695; Matter of Nassau Shores Civic Assn. v Colby, 118 AD2d 782, mot to dismiss appeal granted 68 NY2d 808). However, the court erred in declining to convert the proceeding pursuant to CPLR 103 (c) into a declaratory judgment action (see, Matter of Nassau Shores Civic Assn. v Colby, supra). Thus, the proceeding is hereby converted to a declaratory judgment action with the amended petition deemed the complaint. Additionally, the record reflects that the Attorney-General was given prior notification of the petitioners’ challenge to the subject legislation as required by Executive Law § 71 and CPLR 1012 (see, Matter of McGee v Korman, 70 NY2d 225). The Attorney-General has represented that his office will not participate in the instant action.
Turning to the merits, we agree with the petitioners’ contention that the procedure utilized by the town in altering the boundaries of the subject improvement area was unconstitutional since the petitioners were not provided with notice *91and an opportunity to be heard prior to the enactment of Laws of 1983 (ch 755). At the outset, we note that Town Law § 209-q which governs, inter alia, the establishment and/or alteration of a sewer improvement area, specifically mandates that a public hearing be held by the Town Board prior to the adoption of a resolution establishing and/or altering an improvement area (see, Town Law § 209-q [3], [4]). As discussed supra, the town was unable to utilize the procedures set forth in Town Law § 209-q to alter the boundaries of the subject improvement area because the statutory time limitation set forth in Town Law § 209-q (4) had expired.
NY Constitution, article IX, § 2 vests the State Legislature with certain powers to act in relation to the property and the affairs of local governments. Section 2 (b) (2) provides, inter alia, as follows:
"(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature * * *
"(2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership”.
Similarly, Municipal Home Rule Law § 40 provides, in pertinent part: "The elective or appointive chief executive officer, if there be one, or otherwise the chairman of the board of supervisors, in the case of a county, the mayor in the case of a city or village or the supervisor in the case of a town with the concurrence of the legislative body of such local government, or the legislative body by a vote of two-thirds of its total voting power without the approval of such officer, may request the legislature to pass a specific bill relating to the property, affairs or government of such local government * * * In adopting such a request the legislative body shall be governed by the provisions of subdivision one of section twenty of this chapter with regard to the adoption of a local law. The validity of an act passed by the legislature in accordance with such a request shall not be subject to review by the courts on the ground that the necessity alleged in the request did not exist or was not properly established by the facts recited”. Further, Municipal Home Rule Law § 20 (1) provides, inter alia: "No local law shall be passed except by at least the *92majority affirmative vote of the total voting power of the legislative body”.
Pursuant to the aforesaid constitutional and statutory provisions, the town duly requested the State Legislature to enact a "special” or "home rule” law to revise the boundaries of the subject sewer improvement area. However, at no time prior to the submission of the request for the enactment of Laws of 1983 (ch 755) were the petitioners, or similarly situated property owners, given notice or an opportunity to be heard with respect to the subject legislative enactment. We conclude that that result contravened the affected property owners’ rights to due process of law guaranteed to them under the Federal (US Const 14th Amend) and State (NY Const, art I, § 6) Constitutions.
Our conclusion is supported by the holding in Stuart v Palmer (74 NY 183) which involved a challenge to a law (L 1869, ch 217, § 4) enacted by the State Legislature which imposed an assessment of expenses for regulating and grading of roads upon property owners in " 'the town of New Lots, Kings County’ ” (Stuart v Palmer, supra, at 185). The challenged legislation did not require that notice be given to or a hearing provided for the owners of the assessed properties. The Court of Appeals declared the challenged legislation unconstitutional on the basis that it deprived the affected property owners of their rights to due process of law. Judge Robert Earl, writing for the unanimous court, stated, in pertinent part:
"I am of opinion that the Constitution sanctions no law imposing such an assessment, without a notice to, and a hearing or an opportunity of a hearing by the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard. It matters not, upon the question of the constitutionality of such a law, that the assessment has, in fact, been fairly apportioned. The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done. The Legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice * * *
"It must be conceded that property cannot be taken by the right of eminent domain, without some notice to the owner, or *93some opportunity on the part of the owner, at som'e stage of the proceeding, to be heard, as to the compensation to be awarded him. An act of the Legislature, arbitrarily taking property for the public good, and fixing the compensation to be paid could not be upheld. There would in such case be the absence of that 'due process of law’ which both the Federal and State Constitutions guarantee to every citizen. Can it be, that when the public takes land for a public highway, the owners thereof are entitled to a hearing as to the compensation which they are to receive, and yet that the lands on both sides of the highway may be assessed to pay such compensation to their entire value, without any opportunity on the part of the owners to be heard?” (Stuart v Palmer, supra, at 188, 190).
Clearly, the aforesaid reasoning is equally applicable to the case at bar. The town’s position that Stuart v Palmer (supra) has no relevance herein since it was decided in 1878, approximately 85 years prior to the adoption of the home rule provisions of the NY Constitution, article IX, § 2 (b) (2) and Municipal Home Rule Law § 40, is without merit. Neither the constitutional provision nor the statute can be interpreted as giving the State Legislature the power to dispense with due process of law in exercising its authority under those provisions. In order to ensure that the petitioners and similarly situated property owners are not deprived of their constitutional rights to due process, the Town Board, prior to voting on the request to the State Legislature for the passage of a "special” or "home rule” law to alter the boundaries of the sewer improvement area, should conduct a public hearing, upon notice, to provide the affected property owners with an opportunity to be heard on the request.
In view of the above, we conclude that the relief requested herein should be granted, Laws of 1983 (ch 755) declared unconstitutional, and the assessments imposed thereunder declared invalid. In reaching this conclusion, we do not pass on the merits of the petitioners’ claim that they had been assessed an unfair and disproportionate amount of the cost of the subject sewer improvements.
Brown, Rubin and Spatt, JJ., concur.
Motion by the appellants for reargument of an appeal from (1) an order of the Supreme Court, Orange County, entered April 3, 1986, and (2) an order and judgment (one paper), of the same court, dated September 19, 1986, which were decided *94by decision and order of this court dated December 7, 1987 (see, Sheldon v Town of Highlands, 135 AD2d 527).
Ordered that the motion is granted, and, upon reargument, this court’s decision and order dated December 7, 1987, is recalled and vacated, and an opinion and order are substituted therefor.
Ordered that the appeal from the order entered April 3, 1986, is dismissed, as it was superseded by the order and judgment, dated September 19, 1986; and it is further,
Ordered that the order and judgment dated September 19, 1986, is reversed, on the law, the proceeding is converted into an action for a declaratory judgment (see, CPLR 103 [c]), with the amended petition deemed the complaint, and it is declared that Laws of 1983 (ch 755) is unconstitutional and that the assessments imposed pursuant thereto are invalid; and it is further,
Ordered that the petitioner is awarded one bill of costs. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902886/ | Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered September 7, 2011, which granted defendants’ motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied. Order, same court and Justice, entered September 6, 2011, which denied plaintiffs motion seeking declaratory relief, unanimously affirmed, without costs.
This case involves a dispute between two sets of creditors, senior lenders (plaintiff) and junior or mezzanine lenders, as to who has priority to payments personally guaranteed by defendants Lightstone and Lichtenstein but capped at $100 million, under loan and guaranty agreements (made to both sets of lenders) and an intercreditor agreement (IC Agreement), in the event of default by the borrowers.
There are provisions in the various agreements, all of which *459were executed on the same day, that are not fully consistent with each other. “It is a cardinal rule of contract construction that a court should avoid an interpretation that would leave contractual clauses meaningless. Stated otherwise, [c]ourts are obliged to interpret a contract so as to give meaning to all of its terms” (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 6 [1st Dept 2004] [internal quotation marks and citation omitted]).
Here, while the court correctly found that the guaranty claims were excluded from the general subordination provisions of the IC Agreement, section 6 (b), which specifically applies to guaranty claims, still allows junior lenders to collect on such claims only if the senior lender is not also exercising rights against the guarantors. Section 6 (b), however, provides an exception to the limit on a junior lender’s right to enforcement, so long as the right is being exercised in connection with any junior lender pursuing its rights under section 15 (q) of the IC Agreement.
Pursuant to section 15 (q), which applies “[f]or as long [as] any Junior Loan remains outstanding,” Senior lender and junior lenders agreed that the $100 million guaranty cap “shall be applied on a ratable pro rata basis among each of the junior loans,” and that, “[notwithstanding anything to the contrary which may be contained in th[e] [IC] Agreement,” each junior lender could commence and prosecute a guaranty claim, as well as retain any recovery therefrom, so long as it complied with section 15 (q).
The parties agree that there was only one guaranty pot, and that it was capped at $100 million. Thus, if the junior lenders are correct and section 15 (q) constituted a waiver by the senior lender of its rights to any claim on the guaranty cap, then section 6 (b)’s guaranty cap subordination language is superfluous. If, however, the senior lender is correct and section 15 (q) applies only to junior lenders, then that section’s language allowing junior lenders to actually collect guaranty claim monies is rendered superfluous. Moreover, while it may be true that section 15 (q) could reference only those amounts the junior lenders are entitled to collect when all of senior lender’s debts have been satisfied, the junior lenders’ interpretation—that senior lender contracted away its right to the guaranty cap—is equally plausible.
Because the IC Agreement’s clauses concerning the lenders’ rights to prosecute and collect on guaranty claims are “ambiguous, [they] cannot be construed as a matter of law, and dismissal . . . [was] not appropriate” (China Privatization Fund *460[Del], L.P. v Galaxy Entertainment Group Ltd., 95 AD3d 769, 770 [1st Dept 2012] [internal quotation marks omitted]).
Furthermore, no reading of the IC Agreement gives the junior lenders an exclusive right to bring claims against the guarantors, or granted them exclusive rights to the guaranty cap. Accordingly, the motion court erred in finding that plaintiff lacked standing to bring its claims against the guarantors.
We have considered the remaining arguments and find them unavailing. Concur—Tom, J.P., Andrias, Freedman, Roman and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902888/ | OPINION OF THE COURT
Per Curiam.
In April 1978 the plaintiff Patricia Ann Dooley (hereinafter the plaintiff) came under the care of the defendant, a psychiatrist, while she was hospitalized at a psychiatric institution after having made a suicide attempt. The plaintiff remained under the defendant’s care through July 1980 during which time the defendant prescribed the antipsychotic drug Mellaril. It is undisputed that Mellaril caused the plaintiff to suffer pigmentary retinopathy, resulting in her being rendered legally blind.
At the trial, the plaintiff presented evidence of both negligence on the part of the defendant and lack of her informed consent. After the presentation of all the evidence in the case, the trial court granted the plaintiffs’ motion for judgment as a matter of law on both theories. With respect to the negligence claim, the court found that the defendant’s testimony that "he was not aware of all of the side effects of the Mellaril * * * and [he] was not aware of the symptoms of the side effects of the Mellaril he was [then] prescribing * * * for use by the plaintiff” supported a finding of a departure from good and accepted psychiatric practice as a matter of law, which was a proximate cause of the injuries sustained by the plaintiff.
The cause of action predicated on the theory of lack of informed consent (Public Health Law § 2805-d), the trial court determined, was similarly established as a matter of law inasmuch as the defendant could not possibly have advised the plaintiff of the potential for blindness since he himself was not cognizant of this side effect. We disagree with the trial court’s assessment of the evidence and, accordingly, reverse.
Upon a motion for a judgment as a matter of law, the trial court’s function is not to weigh the evidence, but rather, in taking the case from the jury, to determine "that by no rational process could the trier of the facts base a finding in favor of the defendant upon the evidence * * * presented” (Blum v Fresh Grown Preserve Corp., 292 NY 241, 245; see, Lipsius v White, 91 AD2d 271, 276-277).
In connection with the plaintiff’s claim alleging negligence, *105the defendant testified consistently that he recognized that Mellaril could cause pigmentary retinopathy, a condition which would result in a diminution of vision. Indeed, his knowledge was demonstrated by his very actions in discontinuing the medication upon initially learning of the plaintiffs vision difficulties and referring the plaintiff to an ophthalmologist. Critical in the evaluation of the defendant’s testimony is the opinion of the defendant’s expert, Dr. Abraham Halpern, a board certified psychiatrist, who stated that Dr. Skodnek had in all respects followed good and accepted medical practice. He specifically testified as follows:
"Q: Was it known in 1978 as to whether pigmentary retinopathy could progress to a level where it could cause blindness?
"A: Yes, there is a certain percentage of cases that would go on to blindness.
"Q: And so that was known in 1978 at the time that this defendant [had] prescribed Mellaril to Mrs. Dooley, correct?
"A: Yes, sir.
"Q: And if the defendant did not know that in 1978, would that be a departure from accepted standards of practice in 1978?
"A: Well, if he knew that it caused pigmentary retinitis, that would be satisfactory.
"Q: In other words he’s not required to know that the injury could progress to a state where it could actually deprive a person of their sight?
"A: I would say that the reason I say it would be appropriate, the standard could just include retinitis, is that if the blindness ultimately that might eventuate is due to the pigmentary retinitis, then that would occur only after a prolonged period of time. You have to stop the Mellaril long before pigmentary retinitis goes on to blindness”.
Thus, despite Dr. Skodnek’s candid admission that he was not aware of the potential for blindness, his expert’s testimony that the defendant’s knowledge that prolonged use of the drug could cause pigmentary retinitis was a sufficient basis from which the jury could conclude that the defendant did not depart from accepted standards of psychiatric practice in his treatment of the plaintiff.
As to the claim of lack of informed consent, based upon Dr. Skodnek’s testimony and that of his expert, we find sufficient proof in the record for the purpose of raising a *106factual issue for the jury’s determination. When the plaintiff first came under the defendant’s care, she was already taking Mellaril, which had been prescribed by another psychiatrist. The defendant explained that in light of the plaintiff’s history of emotional problems and her suicidal state at the time of her admission to the hospital, he declined to advise the plaintiff of the drug’s more severe side effects for fear of disturbing her even more. He did, however, testify that soon thereafter, he informed her of the possibility that her visual acuity could be impaired by the drug. Dr. Skodnek’s position that good medical practice did not require informing the plaintiff immediately of the possible side effects of the drug was supported by the testimony of Dr. Halpern, who stated that it was, in fact, inadvisable, "while [the plaintiff was in] an acutely depressed state to recount to her all the detailed horrors of [this] medication and its side effects * * * I think it was appropriate not to engage in any discussion as to the side effects in this particular case under those particular circumstances”. While the defense position and the defendant’s version of his conversations with the plaintiff were controverted in significant part by the plaintiff, this conflict simply presented a question of fact for the jury and judgment as a matter of law was therefore unwarranted.
We would further note with respect to the claim of lack of informed consent (see, Public Health Law § 2805-d [3]), that the plaintiff’s testimony that, had she known prior to ingesting the drug, that she might experience vision difficulties which could cause blindness, she would not have consented to the treatment despite her mental condition at the time, raised a question of fact for the jury on this issue. It was incumbent upon the plaintiff to establish "by a preponderance of the evidence * * * that a reasonably prudent person in the patient’s circumstances would have refused to undergo the [treatment] if reasonably informed of the significant perils” (Proce v Franklin Gen. Hosp., 83 AD2d 903, lv denied 55 NY2d 603; see, Public Health Law § 2805-d [3]). In light of the objective nature of the standard, "[t]he patient’s testimony is relevant, but not determinative” (Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199, 207) and presents a question of fact which requires the jury to balance the risks associated with undergoing the treatment against those associated with foregoing it under the circumstances of each case (see, Hylick v Halweil, 112 AD2d 400, 402; Brandon v Karp, 112 AD2d *107490, 492; Flores v Flushing Hosp. & Med. Center, 109 AD2d 198, 200-202).
Turning now to the plaintiffs damage claim for impairment of earning capacity, we agree with the defendant’s argument that the plaintiff was improperly permitted to amend her bill of particulars to include such a claim for the first time on the eve of trial. The defendant was thereby deprived of the opportunity to avail himself of discovery and adequately prepare his case on this issue and was, as a result, significantly prejudiced (see, Kurnitz v Croft, 91 AD2d 972). However, in light of our ultimate determination in this case, we need not disturb the granting of the amendment, nor do we pass upon the merits of the plaintiff’s claim of loss of earnings.
Finally, we find that the trial court’s charge to the jury with respect to the claim of the plaintiff’s husband, Thomas Dooley, for loss of services, was improper insofar as it permitted an award for damages sustained subsequent to the Dooleys’ separation. The record reveals that the Dooleys encountered marital difficulties and ultimately physically separated in 1984, four years after the plaintiff was diagnosed as suffering from pigmentary retinopathy. At the time of trial a divorce action was pending. In the absence of any testimony regarding the likelihood of a reconciliation between the Dooleys, the jury should have been instructed that Mr. Dooley’s right of recovery was limited to the period of time prior to his separation from his wife (cf, Quaglio v Tomaselli, 99 AD2d 487, 488-489).
Mangano, J. P., Brown, Lawrence and Spatt, JJ., concur.
Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902890/ | Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about May 11, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.
Since no material facts were contested, the resentencing court was not required to conduct an evidentiary hearing (see People v Anonymous, 85 AD3d 414 [1st Dept 2011], lv denied 18 NY3d 922 [2012]). The court complied with the resentencing statute when defendant was “brought before the court and given an opportunity to be heard” (id. at 414). Giving a defendant an opportunity to be heard is mandatory, but the taking of testimony is not. Here, the court permitted defendant to make an extensive oral statement, and it considered written submissions from the witnesses whom defendant had sought to call. Defendant received a full opportunity to inform the court of factors supporting his resentencing motion.
The court properly exercised its discretion in concluding that substantial justice dictated denial of resentencing, given defendant’s very extensive history of felony convictions and parole violations, and his use of narcotics while in prison. These factors outweighed the favorable factors cited by defendant. Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902891/ | OPINION OF THE COURT
Mercure, J.
The principal issue to be resolved on this appeal is whether County Court denied defendants a fair trial by erroneously instructing the jury on the defense of temporary and lawful possession of a weapon. Viewing the evidence in a light most favorable to defendants, as we must with respect to the jury charge (see, People v Steele, 26 NY2d 526, 529), shortly after midnight on July 5, 1986 defendants and Bruce Van Allen were in the Main Rail Bar in the Village of Middleburgh, Schoharie County. A dispute arose between defendant Jon P. Snyder and Van Allen over Snyder’s conduct toward a young woman in the tavern, and the two proceeded outside to fight. Snyder followed Van Allen across Main Street and into a parking lot, where Van Allen grabbed a loaded pistol from a car and aimed it at Snyder’s chest. Snyder managed to get hold of Van Allen’s hand and throat, and defendant Wayne R. Snyder, who had since come on the scene, took the gun from Van Allen. Jon Snyder then repeatedly struck Van Allen until he slumped to the ground. Although State Police barracks were around the corner from the bar and a telephone was available, neither defendant reported the incident to the police or to anyone in the bar. Wayne Snyder returned to the bar to retrieve his cigarettes, and defendants then walked to their home, 10 minutes away.
Defendants discussed what to do with the gun, including throwing it away or into the river, placing it in a mailbox or burying it. It appears that neither considered returning the weapon to its lawful owner, Van Allen, or turning it over to the police. Ultimately, defendants decided to further consider *117the question of what to do with the weapon the following day. In the meantime, Wayne Snyder removed the clip from the revolver and placed the gun under the mattress of his bed. After being home for approximately one half hour, defendants returned to the site of the incident to see how Van Allen was doing. As they approached, they saw an ambulance and the police at the scene. After observing from a safe distance for several minutes, they returned home where they went to sleep, with the gun still under Wayne Snyder’s mattress. Defendants were awakened the following morning by their mother, who indicated that the police were at the door and wanted to see them. When State Police officers asked about the gun, defendants turned it over to them and were arrested. Approximately 3 Vi hours elapsed between the time the weapon was taken from Van Allen and its ultimate recovery by the police.
Defendants were charged, inter alia, with criminal possession of a weapon in the third degree (see, Penal Law § 265.02 [4]). At the conclusion of the trial, County Court charged the jury on the defense of temporary and lawful possession of a weapon as follows: "I charge you that a person who obtains a weapon by wrestling it from a person who is about to attack him is not guilty of unlawful possession of that weapon. If such person possesses it temporarily with no intention to retain it, but with the intent of promptly turning it over to a lawful authority, then that person is not guilty of unlawful or criminal possession of a weapon. Such possession, if temporary, is lawful. Whether in this case the Defendants’ possession of the weapon was temporary and lawful as I have defined that term is an issue of fact for you, the jury, to determine” (emphasis supplied). During the course of their deliberations, the jury sought further instructions on this defense. At that time, defendants objected to the original charge upon the ground that intent to turn the weapon over to lawful authorities is not a proper element of the defense and requested curative instructions. County Court denied the request. Jon Snyder was convicted of criminal possession of a weapon in the third degree, for which he was sentenced to a prison term of 2 to 6 years, and assault in the third degree, for which he received a concurrent 1-year sentence. Wayne Snyder was convicted of criminal possession of a weapon in the third degree and was sentenced to a prison term of IV2 to AVz years. This appeal followed.
Relying on People v Whitehead (123 AD2d 895), defendants *118maintain that County Court committed prejudicial error in instructing the jury that it could find temporary and lawful possession of a weapon only if it determined that defendants intended to promptly turn the weapon over to a lawful authority. In People v Whitehead (supra), the defendant and his wife were returning home from a party when they came upon an acquaintance who was discharging a handgun. The defendant disarmed the acquaintance, gave him $5 for a taxi, retained the gun and was arrested for unlawful possession of a weapon, apparently just minutes later. The trial court had charged the jury that the defense of temporary and lawful possession is established only where the defendant had the intent to turn the subject weapon over to the lawful authorities. The Second Department found this charge erroneous, holding that "in numerous cases, defenses based on temporary and lawful possession of a weapon were held to have been established even in the absence of any intent * * * to surrender the weapon to the police” (supra, at 896). We agree that an intent to surrender the weapon to the police is not always necessary to establish the defense. There are a number of cases where no such requirement has been explicitly stated. Most notable are those wherein, as in this case and in People v Whitehead (supra), the defendant has disarmed an assailant or an unlawful possessor of a weapon (see, People v Almodovar, 62 NY2d 126; People v Persce, 204 NY 397; People v Monger, 71 AD2d 641; People v Singleteary, 54 AD2d 1088; People v Messado, 49 AD2d 560).
Clearly, however, the right of possession incident to the disarming of another is highly limited in scope and duration. In People v Harmon (7 AD2d 159, 161), cited as authority in both People v Almodovar (supra) and People v Whitehead (supra), the defendant was arrested shortly after disarming another in a restaurant. The trial court in Harmon (supra, at 161) refused the defendant’s request for a charge " 'that if the possession of the blackjack by [the defendant] was obtained by disarming a wrongdoer, then that was not unlawful possession’ ”. The Fourth Department held that although defendant was entitled to a charge on temporary and lawful possession, this particular instruction was properly denied because "the language omitted many important factors such as the time of disarming in relation to the time of seizure [of the weapon by the police], the reason for possession after disarming, and the like” (People v Harmon, supra, at 161 [emphasis supplied]). Similarly, the Second Department has *119justified a defendant’s possession of a weapon for less than 30 minutes after he found it because he had not had enough time to properly dispose of it (see, People v Montgomery, 106 AD2d 410). An intent to promptly turn the weapon over to the authorities will generally be required, however, in cases where the defendant finds a weapon (see, e.g., People v La Pella, 272 NY 81).
The unqualified right of possession following the act of disarming another will end when the weapon is secured and the defendant has had an opportunity to turn it over to lawful authorities. Retention beyond that point will be justified only by an affirmative showing of intent to properly dispose of the weapon and circumstances justifying the defendant’s failure to do so promptly (see, e.g., People v Quintana, 260 App Div 13). In this case, defendants retained the weapon after an opportunity arose to turn it over to the lawful authorities. Even if their failure to walk directly from the incident to the State Police barracks or to call the police can be excused, their purposeful avoidance of the officers they later observed on the scene cannot.
Where, as here, there is no view of the facts that supports a defense, a court may properly refuse to charge it (see, People v Williams, 50 NY2d 1043, 1044-1045). In our view, there is no possible hypothesis under which the jury could have found defendants’ possession innocent. Although brevity of retention is a relative concept and should ordinarily be submitted to the jury (see, supra, at 1046 [dissenting mem]) and the People have the burden of disproving the defense beyond a reasonable doubt (see, Penal Law § 25.00 [1]), the evidence "is utterly at odds with [defendants’] claim of innocent possession” (People v Williams, supra, at 1045). Accordingly, we conclude that County Court was not obliged in this case to charge the defense of temporary and lawful possession. The charge given was, if anything, more favorable to defendants than it should have been, nullifying their claim of prejudice.
Similarly unavailing is defendants’ contention that the sentences were unduly harsh. This court has consistently held that "[t]he imposition of the sentence rests within the sound discretion of the trial court” (People v Harris, 57 AD2d 663). Where, as here, there has been neither a clear abuse of discretion nor extraordinary circumstances, we should not interfere with that exercise of judgment.
Mahoney, P. J., Weiss and Levine, JJ., concur.
Judgments affirmed. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902892/ | OPINION OF THE COURT
Kooper, J.
In this case of first impression before a New York *122appellate court, we are called upon to select the appropriate limitations period to be applied to an action asserted under General Obligations Law § 11-101, the so-called "New York Dram Shop Act”. For the reasons that follow, we conclude that plaintiffs action is properly subject to the three-year limitations period prescribed by CPLR 214 (2). Accordingly, we affirm the order of the Supreme Court.
I
The plaintiffs lawsuit has its genesis in an automobile accident which occurred on July 23, 1983, on Montauk Highway in Suffolk County. The pertinent facts, which are undisputed, disclose that the plaintiffs decedent, Nancy Alfonso, was a passenger in an automobile operated by one Peter Goode. Goode had been drinking at the defendant New Bay Club in East Quoque, where he was allegedly served excessive amounts of alcohol. The driver of the other automobile involved in the collision, one Brian Deignan, was also allegedly intoxicated, having been served excessive amounts of alcohol at the defendant Neptune Beach Club, located in Hampton Bays. Nancy Alfonso was killed in the collision.
II
Thereafter, letters of administration were issued to the plaintiff on September 19, 1983. On July 16, 1984, the plaintiff commenced an action against the various drivers and owners of the two automobiles. The instant action against, inter alia, the two defendant clubs was commenced by the service of a summons and verified complaint on or about May 15, 1986, approximately 2 years and 10 months after the cause of action allegedly accrued. The appellants’ verified answer included as an affirmative defense the contention that the instant action was untimely inasmuch as it had not been commenced within two years of the decedent’s death as prescribed by EPTL 5-4.1.
III
Subsequently, the defendant John Crowley moved to dismiss the complaint, inter alia, for lack of personal jurisdiction. The plaintiff cross-moved for an order striking, inter alia, the appellants’ fourth affirmative defense based on the Statute of Limitations. The court granted the plaintiff’s cross motion to *123the extent of striking that affirmative defense. In its memorandum decision (see, Bongiorno v D.I.G.I., Inc., 135 Misc 2d 516), the Supreme Court concluded that plaintiff’s action was properly construed as one brought pursuant to the Dram Shop Act (see, General Obligations Law § 11-101)1 inasmuch as the underlying allegations of liability centered upon the defendants’ sale of excessive quantities of alcohol to the two intoxicated drivers involved in the fatal accident. After discussing the differing purposes underlying a dram shop action and a wrongful death action, and the different bases for liability under each theory of recovery, the Supreme Court concluded that the plaintiff’s lawsuit was properly characterized a dram shop action and governed by CPLR 214 (2), which imposes a three-year Statute of Limitations in respect to statutorily created liabilities. The court thereupon granted plaintiff’s cross motion insofar as it sought dismissal of the appellants’ affirmative defense premised on the alleged untimeliness of the action. It is from this determination that the appeal was taken. We affirm.
IV
The underlying premise upon which the appellants rest their first contention is that the averments set forth in the complaint closely resemble, and therefore must be construed as interposing, a claim seeking recovery for the wrongful death of the decedent pursuant to EPTL 5-4.1, thereby requiring application of the two-year limitation period prescribed by *124EPTL 5-4.1 (l).2 In support of this contention, the appellants note, inter alia, that (1) the caption of the complaint reveals that the action is "styled in the manner of a wrongful death action”; (2) the action was brought by the administratrix of the decedent’s estate, whose appointment, the appellants maintain, "is an essential element of the cause of action for wrongful death”; and (3) the allegations in the body of the complaint "attest to the fact that a wrongful death action was intended” inasmuch as the complaint states that the action was brought on behalf of "those entitled to share in the estate of the decedent” and is brought to recover "pecuniary damages” and "funeral expenses”. The appellants conclude that "by couching her complaint and her allegations of damage in terms reserved for wrongful death actions, as opposed to Dram Shop actions, Plaintiff * * * has manifested her clear and unambiguous intent to allege and plead an action for wrongful death and not a Dram Shop action”. We find these contentions to be unpersuasive.
We note, initially, that the form in which the specific allegations of liability are cast is of no talismanic significance in terms of assessing the reality and essential nature of the relief sought (cf., Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389, 397; State of New York v Cortelle Corp., 38 NY2d 83, 86; Brick v Cohn-Hall-Marx Co., 276 NY 259, 264; Lyons v Tiedemann, 135 AD2d 509; Matalavage v Sadler, 77 AD2d 39). In any event, the substantive allegations contained in the complaint are entirely consistent with, and reasonably construed as, implicating the remedial provisions of the Dram Shop Act, which, we note, authorizes recovery for injury to person, property or means of support "by reason of the intoxication of any person, whether resulting in his death or not” (see, General Obligations Law § 11-101 [1]; Valicenti v Valenze, 68 NY2d 826; Wellcome v Student Coop., 125 AD2d 393; Matalavage v Sadler, supra; see also, Mead v Stratton, 87 NY 493; Lyons v Tiedemann, supra; Comment, Intoxication—Liability and Recovery: A Practical Look at New York’s Dram Shop Act, 39 Alb L Rev 15 [1974]).
*125 A brief review of the factual allegations contained in the complaint unmistakably discloses the plaintiffs reliance upon the provisions of the Dram Shop Act, under which a tavern owner may be held strictly liable by an injured party. The complaint alleges, inter alia, that the two drivers of the automobiles who are alleged to have caused the decedent’s death were intoxicated; that the defendant clubs and their employees caused and contributed to the drivers’ intoxication by illegally selling them alcoholic beverages when they were intoxicated; that the sale of beverages contributed to the drivers’ intoxication which ultimately caused the automobile accident in which the decedent was killed; and that the acts committed by the defendants constituted violations of the New York State Dram Shop Act, as embodied in General Obligations Law § 11-101. Reviewed within the context of the foregoing allegations, it is clear that the essence and reality of the liability upon which the plaintiff relies is that provided by the New York State Dram Shop Act (cf., Sears, Roebuck & Co. v Enco Assocs., supra).3 .
V
The appellants further theorize that, even if the plaintiff’s action is properly denominated as one implicating the provisions of the Dram Shop Act, the two-year limitations period applicable to a wrongful death action nevertheless represents the appropriate Statute of Limitations to be applied in this case. In support of this contention, the appellants argue, inter alia, that "had the Legislature intended that death actions caused by the allegedly unlawful sale of intoxicating liquors *126be subject to a limitations period other than the basic period of limitations for all other death cases, it could have and would have so provided”.
Contrary to the appellants’ contentions, the Legislature’s decision to omit reference to a particular limitations period is hardly supportive of the contention that application of the two-year wrongful death limitations period must have been intended merely because damages attributable to death are among those injuries for which recovery is authorized under the Dram Shop Act (cf., Murphy v American Home Prods. Corp., 58 NY2d 293, 307; State of New York v Cortelle Corp., supra, at 86). We perceive no support for the proposition that the framers—through their silence—implicitly designated as applicable to a dram shop action, the two-year limitation period expressly reserved for the substantively dissimilar wrongful death action. Indeed, since the CPLR specifically provides for a limitations period in respect to statutory liabilities (see, CPLR 214 [2]), the framers’ silence is more credibly attributed to the unique statutory nature of the liability created by the Dram Shop Act, rather than its alleged similarity to a wrongful death action. Moreover, the Dram Shop Act’s provision for the recovery of damages sustained in consequence of death—included presumably, with knowledge of the remedy afforded by the wrongful death statute—further buttresses the contention that the Legislature intended to create an independently cognizable cause of action, separate and distinct from a wrongful death action.
Nor do we perceive the existence of material similarities between the two statutes supporting, by substantive analogy, the application of the two-year wrongful death limitations period to a Dram Shop Act. Indeed, courts and commentators who have compared the Dram Shop Act and the wrongful death action have construed the two statutes as representing distinct causes of action (see, McNally v Addis, 65 Misc 2d 204, 223 ["action for damages under the Dram Shop Act is separate and distinct from the usual wrongful death action”]; cf., Scheu v High-Forest Corp., 129 AD2d 366, 369; Sharpley v Brown, 43 Hun 374; Playford v Perich, 2 Misc 2d 170, 172-173; Village of Brooten v Cudahy Packing Co., 291 F2d 284, 292; Farmers State Bank & Trust Co. v Lahey’s Lounge, 165 Ill App 3d 473, 519 NE2d 121, 124-125; Ritter v Village of Appleton, 254 Minn 30, 93 NW2d 683, 688; 21 Carmody-Wait 2d, NY Prac § 130:7, at 686; 3 NY Jur 2d, Alcoholic Beverages, § 122, at 460; 3 Warren, Negligence, Intoxicated Persons, § 3.06, at *127340-341; Comment, Intoxication—Liability and Recovery: A Practical Look at New York’s Dram Shop Act, 39 Alb L Rev 15, 22 [1974]; 45 Am Jur 2d, Intoxicating Liquors, § 564, at 860-861). The wrongful death action—available only if the decedent would himself have had a cause of action against the defendant and based on the defendant’s commission of a "wrongful act, neglect or default”—does not purport to create an independent, actionable wrong where none before existed, but instead, furnishes a means of recovery to a limited class of statutorily designated distributees who have sustained pecuniary loss by virtue of the decedent’s death (see, EPTL 5-4.1 [1]; 1-2.5; Greco v Kresge Co., 277 NY 26, 32-33; McDaniel v Clarkstown Cent. School Dist. No. 1, 110 AD2d 349, 353, appeal dismissed 67 NY2d 918; 21 Carmody-Wait 2d, NY Prac § 130:22, at 705; Prosser and Keeton, Torts § 127, at 955 [5th ed]; see also, Caffaro v Trayna, 35 NY2d 245, 248; Grant v Guidotti, 66 AD2d 545, affd 49 NY2d 622; Stutz v Guardian Cab Corp., 273 App Div 4; Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 5-4.1, at 380; 9A Rohan, NY Civ Prac ¶ 5-4.1 [1]).
In contrast, the Dram Shop Act—remedial in nature—represents a purely statutory species of strict liability, entirely unknown at common law, which creates "an expansive cause of action” (Matalavage v Sadler, supra, at 43) affording "[a]ny person” the right to seek "actual and exemplary damages” (General Obligations Law § 11-101 [1]) even where the individual whose death gives rise to the injuries sustained would himself possess no cause of action under the Act (see, Valicenti v Valenze, 68 NY2d 826, supra; Mead v Stratton, 87 NY 493, supra; Lyons v Tiedemann, 135 AD2d 509, supra; Delamater v Kimmerle, 104 AD2d 242; Matalavage v Sadler, 77 AD2d 39, supra; Fox v Mercer, 109 AD2d 59; see also, D’Amico v Christie, 71 NY2d 76, 83; Mitchell v The Shoals, Inc., 19 NY2d 338; Reuter v Flobo Enters., 120 AD2d 722; see also, Comment, Intoxication—Liability and Recovery: A Practical Look at New York’s Dram Shop Act, 39 Alb L Rev 15, 17-18 [1974]; Note, Liability Under the New York Dram Shop Act, 8 Syracuse L Rev 252 [1957]). It is apparent, therefore, that the dispositive characteristic of the Dram Shop Act cause of action for the purposes of selecting an appropriate period of limitations is not, as the appellants theorize, its provision for the recovery of damages sustained due to death, but rather, its unique status as a statutorily created liability for which no common-law antecedent exists (see, e.g., State of New York v Cortelle *128Corp., 38 NY2d 83, 86, supra; see also, State of New York v Stewart’s Ice Cream Co., 64 NY2d 83, 88).
Accordingly, when considered within the context of the foregoing, it is our conclusion that the appropriate limitations period to be applied to a dram shop action is the three-year period prescribed by CPLR 214 (2), which is expressly applicable to actions " 'to recover upon a liability, penalty or forfeiture created or imposed by statute’ ” (see, Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 173, quoting from CPLR 214 [2]; State of New York v Cortelle Corp., supra; State of New York v Danny’s Franchise Sys., 131 AD2d 746, lv dismissed 70 NY2d 940). Since the action at bar was commenced prior to the expiration of three years from its accrual, the appellants’ contention that the action is untimely must be rejected and the order appealed from should be affirmed.
Bracken, J. P., Weinstein and Rubin, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs.
. General Obligations Law § 11-101 (1) states, in pertinent part, that "[a]ny person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages”.
Originally enacted in 1873 and entitled "An Act to suppress intemperance, pauperism and crime” (L 1873, ch 646; Valicenti v Valenze, 68 NY2d 826; Volans v Owen, 74 NY 526; Mead v Stratton, 87 NY 493; Matalavage v Sadler, 77 AD2d 39, 41-42) the New York Dram Shop Act has been more recently described as "the statutory embodiment of public policy that a tavern owner who continues to sell alcoholic beverages to an intoxicated patron, or one who is apparently under the influence of alcohol * * * is engaging in tortious conduct for which an injured party may hold him strictly liable” (Delamater v Kimmerle, 104 AD2d 242, 243-244; see also, Fox v Mercer, 109 AD2d 59, 60; Comment, Liability of Tavern Owners Under the New York State Dram Shop Act, 30 Alb L Rev 271 [1966]).
. EPTL 5-4.1 (1) states, in pertinent part, that "[t]he personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent’s death.”
. [2] Nor does the representative capacity in which the decedent’s administratrix has commenced this action undermine her contention that the complaint is properly construed as asserting a claim under the Dram Shop Act. Since the decedent herself is a person upon whom the Dram Shop Act confers a right of recovery—which right, by the express language of the statute "survives” to her executor or administrator—the commencement of the action at bar by the plaintiff in her representative capacity is not inconsistent with the assertion of a claim for damages under the Dram Shop Act (see, General Obligations Law § 11-101 [2]; Scheu v High-Forest Corp., 129 AD2d 366, 369; Matalavage v Sadler, 77 AD2d 39, 43-44; Hammell v Mannshardt, 248 App Div 624; cf., Bator v Barry, 282 App Div 324; Maras v Bertholdt, 126 Ill App 3d 876, 467 NE2d 599, 607-608; Beaupre v Boulevard Billiard Club, 510 A2d 415 [RI]). We note, moreover, that funeral expenses have been held to be recoverable under a dram shop theory of liability (see, Scheu v High-Forest Corp., supra, at 370; McNally v Addis, 65 Misc 2d 204, 223; 48A CJS, Intoxicating Liquors, § 460, at 188-189). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902895/ | Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about May 11, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.
Since no material facts were contested, the resentencing court was not required to conduct an evidentiary hearing (see People v Anonymous, 85 AD3d 414 [1st Dept 2011], lv denied 18 NY3d 922 [2012]). The court complied with the resentencing statute when defendant was “brought before the court and given an opportunity to be heard” (id. at 414). Giving a defendant an opportunity to be heard is mandatory, but the taking of testimony is not. Here, the court permitted defendant to make an extensive oral statement, and it considered written submissions from the witnesses whom defendant had sought to call. Defendant received a full opportunity to inform the court of factors supporting his resentencing motion.
The court properly exercised its discretion in concluding that substantial justice dictated denial of resentencing, given defendant’s very extensive history of felony convictions and parole violations, and his use of narcotics while in prison. These factors outweighed the favorable factors cited by defendant. Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902896/ | *140OPINION OF THE COURT
Carro, J.
Plaintiff Thomas Crimmins Contracting Co., Inc., and Cayuga Construction Co., a joint venture (hereinafter plaintiff or contractor), entered into a contract with the City of New York, acting through its agent the New York City Transit Authority, to construct a section of the proposed Second Avenue subway. Among the provisions of this lengthy contract is article XXIV, which establishes a dispute resolution procedure and states as follows: "To prevent disputes and litigations, the Engineer shall in all cases determine the classification, amount, quality, acceptability and fitness of the several kinds of work and materials which are to be paid for under this contract, shall determine every question in relation to the Works and the construction thereof and shall determine every question which may be relevant to the fulfillment of this contract on the part of the Contractor. His determination and estimate shall be final and conclusive upon the Contractor, and in case any question touching this contract shall arise between the parties hereto such determination and estimate shall be a condition precedent to the right of the Contractor to receive any money under this contract.” The contract defines the engineer as the chief engineer of the Transit Authority.
Included in the general clauses of the specifications to the contract is a clause dealing specifically with changed and unanticipated subsurface conditions at the construction site. This clause, section 201.34, provides that "(a) Should the Contractor encounter during the progress of the work, subsurface conditions at the site materially differing from any shown on the contract drawings or indicated in the specifications or such subsurface conditions as could not reasonably have been anticipated by the Contractor and were not anticipated by the City or the Authority, which conditions will materially affect the cost of the work to be done under the contract, the attention of the Engineer must be called immediately to such conditions before they are disturbed. The Engineer shall thereupon promptly investigate the conditions. If he finds that they do not so materially differ, or that they could not reasonably have been anticipated by the Contractor and were not anticipated by the City or the Authority, the contract may be modified with his written approval. However, the amount of an increase or decrease of cost resulting from such conditions shall be subject to prior written approval of the Comp*141troller’s Chief Engineer. Any increase in costs resulting therefrom shall be subject to the Charter and Administrative Code provisions relating to additional work, (b) In addition to the foregoing, the prior written concurrence of the [Federal] Government and of the Commissioner of Transportation of the State and the State Comptroller shall be necessary.”
Plaintiff did encounter what it believed to be changed and unanticipated subsurface conditions and brought these to the engineer’s attention, who, except for a small adjustment with respect to the high rock claim, denied plaintiff’s request for an upward adjustment in the contract price. Plaintiff also submitted to the engineer claims for protest work alleged to have been outside the scope of the contract and for payment of extra work which the engineer deemed necessary for completion of the contract. Most claims were denied.
Plaintiff thereafter commenced the within action seeking damages for the additional expenses incurred as a result of the unanticipated subsurface conditions and for the extra and disputed work claims previously denied. Defendant served an answer in October of 1980, an amended answer in November of 1980, and then five years later, sought leave to serve a second amended answer to set forth as a further defense that the engineer’s determinations made pursuant to article XXIV, denying the very claims raised in the instant complaint, were final and conclusive and bar an action to have these claims litigated de novo. The motion was initially denied on the ground of prejudice to the plaintiff.
Upon renewal, the motion court, having conceded its factual error in finding prejudice to plaintiff due to delay, nevertheless denied the motion, finding the defense insufficient, as a matter of law, on the basis of Naclerio Contr. Co. v City of New York (69 NY2d 794, affg on mem below 116 AD2d 463). It is from this determination that the city appeals.
While the city’s inordinate delay in asserting this defense lacks any justifiable excuse, plaintiff does not contend on appeal that this delay resulted in substantial prejudice. Thus, whether or not leave to amend should be granted turns solely on the question of the merits of the proposed defense. While prior law basically favored limited judicial review of proposed pleadings merely to establish facial sufficiency or to detect palpable defects, the favored practice has now become that when a substantial question is raised as to the meritoriousness of proposed pleadings, courts should resolve the question of *142merit to obviate further time-consuming litigation. (Brennan v City of New York, 99 AD2d 445, 446; Andersen v University of Rochester, 91 AD2d 851, appeal dismissed 59 NY2d 968; Sharapata v Town of Islip, 82 AD2d 350, 362, affd 565 NY2d 332; East Asiatic Co. v Corash, 34 AD2d 432, 434.)
We begin our discussion of the merits with the observation that it has been a long-established practice, one which originated with government works’ contracts, to provide in construction contracts that the completion, sufficiency, classification, and amount of the contractor’s work be determined by a third person, usually the owner’s architect or engineer, who typically issues the final certificate, certifying completion and adequacy of the work performed, and who the contract often authorizes to resolve work disputes. (See generally, 22 NY Jur 2d, Contracts, §§ 297-303.)
As early as 1859, the Court of Appeals, in reviewing a clause giving the defendant railroad’s engineer broad authority to "decide every question * * * between the parties, relative to the execution [of the contract],” upheld the legitimacy of such "common” dispute resolution clauses and described their purpose as "to prevent disputes in regard to the amount and character of the work performed; and to secure the accuracy of all measurements and calculations, by having competent persons to make them.” (McMahon v New York & Erie R. R. Co., 20 NY 463, 465.) Given the limited effect of these clauses, they have not been deemed assailable because the engineer was employed by the governmental body for whom the construction is being performed, nor because the engineer’s determinations are made final only as to the contractor. (See, e.g., O’Brien v Mayor of City of N. Y., 139 NY 543, 576-577.)
Although some cases construing the scope and effect of such dispute resolution clauses have drawn parallels to arbitration clauses and have loosely termed the architect or engineer an arbitrator, determinations made pursuant to these clauses have not been subjected to the limited judicial review accorded to arbitrators’ decisions pursuant to CPLR article 75, but instead have been reviewed pursuant to judicially created rules, as set forth in Joseph Davis, Inc. v Merritt-Chapman & Scott Corp. (27 AD2d 114). "The extent of the right of a third party, such as the Authority’s engineers, to bind the parties by their determination is well settled. If a contract provides that the decision or determination of an engineer shall be final and binding, such finality attaches, in the absence of *143fraud, bad faith or palpable mistake equivalent to bad faith, only to those determinations involving quantity or quality of material, classification or amount of work performed, or a calculation as to a final estimate; where the expertise of the engineer is important and essential (Sweet v. Morrison, 116 N. Y. 19; Yonkers Contr. Co. v. New York State Thruway Auth., 26 A D 2d 766; Dowd v. State of New York, 239 App. Div. 141, 142). In short, the resolution of factual disputes is the prerogative of the engineers. Absent any question of construction of the contract, the engineers’ determination could not be challenged. They do not, however, have the power to construe the contract (see, generally, Ann. 137 A. L. R. 530; 10 N. Y. Jur., Contracts, §§ 155-156). The cases cited above are distinguishable from those situations where the meaning of the terms is to be construed and where the court’s responsibility for construction cannot be assumed by the engineers so as to oust the court of jurisdiction (Daniels Co. v. City of New York, 196 App. Div. 856; Merrill-Ruckgaber Co. v. City of New York, 160 App. Div. 513; Uvalde Contr. Co. v. City of New York, 160 App. Div. 284; Burke v. Mayor, 7 App. Div. 128). The legal meaning of the contract is always the responsibility of the court and not of the engineers” (supra, at 117-118 [emphasis added]).
Even Savin Bros. v State of New York (62 AD2d 511, affd on opn below 47 NY2d 934), upon which the dissent partially relies to support its argument that the instant dispute resolution clause conclusively determined plaintiffs claims and bars the within action, also reiterated the now well-established rule that while "the parties are free to leave certain determinations to the judgment of the engineer and, where this has been done, the determination of the engineer is final as a matter of law, absent a showing of fraud or bad faith * * * the contractor is not bound by the engineer’s erroneous construction of law in interpreting the contract (Smith Contr. Co. v City of New York, [240 NY 491], supra; Daniels Co. v City of New York, [196 App Div 856], supra; Burke v Mayor, etc. of City of N. Y., 7 App Div 128)” (supra, at 516).
This exclusion which preserves for the judicial forum issues involving questions of law can hardly be said to undermine the specific purposes underlying these clauses and, indeed, is responsive to a problematic factor in having an engineer or architect make legal determinations. As one commentator has observed: "The whole purpose behind courts allowing contracts to make architect’s decisions final at all is to allow *144experts to protect the owner who lacks expertise in the field. Architects having no particular legal expertise, the courts should be willing to review their legal conclusions made on points not concerned with the quality or nature of the work required * * * Compare this with the case of an arbitrator, whose expertise, if not strictly legal, is certainly in the area of settlement of disputes. It should go without saying that when the reason for the rule ceases, the rule also ceases, and experts are therefore not entitled to conclusive deference outside the areas of their expertise” (Corbin, Contracts § 652, at 790-791 [Kaufman 1984 Supp]).
The City of New York cannot ignore the effect of these cases by arguing that they are nevertheless inapplicable to the instant broadly worded clause, for this very same clause has itself been interpreted in this manner since at least 1893. The contract at issue in O’Brien v Mayor of City of N. Y. (139 NY 543, supra) included the very same article XXIV clause (supra, at 575). While the city never asserted that the plaintiff contractor was barred by the clause from bringing its action to recover on its previously denied excavation claim, the court did note that the dispute therein involved a question of contract construction, which the court then went on to review on the merits (supra, at 568).
Subsequently, in Daniels Co. v City of New York (196 App Div 856, supra) this court specifically ruled that despite the article XXIV language that the engineer is to "determine every question which may arise relative to the fulfillment of this contract on the part of the Contractor”, the engineer’s determinations were only final and conclusive on such issues as "quality of material * * * and * * * quantity and classification of material,” but not as to points of law and contract construction (supra, at 862, 864). Likewise, in Smith Contr. Co. v City of New York (209 App Div 271, mod 240 NY 491, supra) this Court again confirmed that article XXIV does not bar an action de novo on matters involving contract construction (supra, at 277, 279). While this court, however, reversed the jury’s verdict as to one item involving the classification of certain work, concluding that that issue was within the engineer’s domain (supra, at 279), the Court of Appeals reinstated the verdict on that point, relying on two equally viable theories: that the engineer’s classification of the work was so arbitrary as to be the equivalent of bad faith, or that the engineer misconstrued the contract terms. (Smith Contr. Co. v City of New York, supra, 240 NY, at 499, 500.) Under either *145theory, the court ruled, article XXIV did not bar de novo litigation of the contractor’s claim (supra, at 500).
Since these decisions interpreting article XXIV predate Ardsley Constr. Co. v Port Auth. (54 NY2d 876) and Maross Constr. v Central N. Y. Regional Transp. Auth. (66 NY2d 341) upon which the city and the dissent so heavily rely, it is important to determine whether these more recent decisions explicitly or implicitly overrule this long judicial history of construction of these clauses. The court’s opinion in Ardsley indicates that the parties there had agreed to be bound by the standard of review of Tufano Contr. Corp. v Port of N. Y. Auth. (18 AD2d 1001, affd 13 NY2d 848): that the decision of the engineer was conclusive, unless infected by fraud, bad faith or palpable error. (Ardsley Constr. Co. v Port Auth., supra, 54 NY2d, at 877.) Thus, although the Court of Appeals noted that the Ardsley dispute resolution clause was different from the Tufano clause and more akin to an arbitration clause in that it did not exclude the engineer from determining questions of law, it did not disturb the parties’ agreement to be bound by the Tufano standard of review. Tufano, in turn, did not involve a dispute pertaining to contract construction, and thus the standard of review applied therein, that the engineer’s determinations were final unless infected by fraud, bad faith or palpable error, is consistent with the case law limiting finality to the engineer’s factual determinations.
Maross (supra), however, squarely presented the court with what it concluded was "a broad arbitration clause”, which empowered the architect, who was privately retained by the Transportation Authority and not one of its employees, "to decide all questions of any nature whatsoever arising out of, under or in connection with, or in any way related to or on account of, this Contract (including claims in the nature of breach of Contract or fraud or misrepresentation * * *)” and made those decisions "conclusive, final and binding on the parties” and not subject to impairment or waiver by negotiations or settlement offers (supra, 66 NY2d, at 344).
Having concluded that this was a broad arbitration clause, and noting that no public policy challenge was made to its scope, the court held that the clause did empower the architect to interpret the contract and limited judicial review of his decisions to that review available under the decisional law relative to arbitration.
Maross (supra), however, does not stand for the proposition *146that all construction contract dispute resolution clauses should be treated as broad, binding arbitration clauses and certainly did not explicitly or even implicitly overrule the long history of judicial construction of the very clause involved herein. Furthermore, the differences between the subject dispute resolution clause and the Maross clause, the differences between a municipal agency and a public corporation engaging in construction projects and certain public policy concerns compel us to conclude that the Maross standard of review should not be applied across the board to any dispute resolution clause and certainly not to the one at issue here.*
The Maross arbitration clause specifically provided that the decisions of the privately retained architect were mutually binding "on the parties”, as is typical in arbitration. This indicated that the contract contemplated the submission of disputes by both parties. Article XXIV, on the other hand, exists so that the contractor will submit its disputes to the engineer and specifically binds only the contractor. The reality is that neither the city nor the Transit Authority need formally submit their disputes to the engineer for resolution, since the engineer is their agent and employee, represents their interests and, furthermore, is the one who protects the city’s interests as he directs, inspects and supervises the work and assigns any required additional work under the contract. The subservient position of the chief engineer vis-á-vis city officials was noted in O’Brien v Mayor of City of N. Y. (139 NY 543, supra) where the court observed that because the chief engineer was obligated to follow the directions and interpretations of the city’s Commissioner of Public Works and had no power to discharge his duties under article XXIV by invoking and applying equitable considerations, the engineer therefore "occupied no such position as an ordinary arbitrator upon a disputed question submitted by the parties for decision” (supra, at 585).
Maross and also Ardsley (supra), on the other hand, involved public corporations. The juridical independence of public corporations from the political limitations imposed on *147the State and its political subdivisions has been long noted. (See, Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84, 88; Matter of New York Post Corp. v Moses, 10 NY2d 199, 203-204; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 423.) Although the Transit Authority is also a public corporation, it openly acted as the agent of the City of New York with reference to this contract and is therefore bound by the same limitations as restrict the city. (See, Grace & Co. v State Univ. Constr. Fund, supra, 44 NY2d, at 88.)
Another such limitation is that, as opposed to the arbitrator in Maross (supra, at 344), whose decisions could not be "impaired or waived by any negotiations or settlement offers in connection with the question decided,” the chief engineer, pursuant to the City Charter, has no authority to settle or adjust a claim, since that power is expressly reserved to the City Comptroller. (NY City Charter § 93 [g]; see, Bush v OBrien, 164 NY 205, 212.) To suggest, then, that the engineer herein has any judicial autonomy to settle questions of law and contract construction is not only to defy the realities of his position of subservience within the city’s political structure, but contravenes as well the City Charter provisions pursuant to which this contract must comply.
Given these inherent limitations, then, in law and reality, of the engineer exercising any true impartial juridical autonomy, it is beyond question that it would violate public policy to interpret article XXIV as making the engineer the final arbitrator over questions of contract construction, for to do so would be to make the city the final and conclusive arbitrator over its own disputes. (Naclerio Contr. Co. v City of New York, 116 AD2d 463, 464, affd on mem below 69 NY2d 794, supra.) The situation here presents not a matter of having a person serve as arbitrator who has some known relation to a party, but, rather, the inherent inequity of having as an arbitrator one who is one of the parties. (Compare, Matter of Cross & Brown Co. [Nelson], 4 AD2d 501, with Matter of Siegel [Lewis], 40 NY2d 687.) Thus, not only does the Maross decision (supra) not require that we depart from the established decisional law regarding these dispute resolution clauses, but public policy forbids that we do so.
The fact that the court in Grow Tunneling Corp. v City of New York (70 NY2d 665, supra), despite the city’s request that it do so, failed to address this very same public policy argument, cannot, as the dissent argues, be interpreted to mean *148that the Court of Appeals has rejected the argument. Principles of law are established by what is decided by a court, not by what the court fails to reach. Moreover, the Court of Appeals adopted the reasoning of our memorandum decision in Naclerio (supra) which specifically relied on this public policy argument. (Naclerio Contr. Co. v City of New York, supra, 116 AD2d, at 464, affd on mem below 69 NY2d 794.)
Having concluded that article XXIV does not bar a contractor from commencing an action to challenge the engineer’s determinations on questions of law and issues of contract construction, we must now address the nature of plaintiffs claims. We address first the claims made pursuant to section 201.34 of the specifications, the changed conditions provision. Changed conditions clauses first appeared in Federal construction contracts just prior to World War II to ameliorate the problems which beset contractors in bidding on projects involving subsurface conditions. Prior to the adoption of these clauses, contractors either conducted their own borings of subsurface conditions, a time-consuming and expensive practice which raised the price of bids, or they simply added a high contingency factor to their bids to protect against unusual conditions discovered during the performance of the contract. (See, Foster Constr. C. A. v United States, 435 F2d 873, 887.)
Since introduction of these clauses, the government often makes its own core borings of subsurface conditions and makes logs of the borings, which are then included in the contract. The contractor relies on the logs, contract plans, drawings and specifications in preparing its bid and is then further protected by the changed conditions clause, which provides that should the conditions encountered materially differ from those shown in the plans, drawings, specifications or logs and affect the cost of performance of the contract, an equitable adjustment of the price will be made. (Supra; see also, Kaiser Indus. Corp. v United States, 340 F2d 322, 329.) The public benefits from these clauses in that the contractors "will have no windfalls and no disasters. The Government benefits from more accurate bidding, without inflation for risks which may not eventuate. It pays for difficult subsurface work only when it is encountered and was not indicated in the logs.” (Foster Constr. C. A. v United States, supra, 435 F2d, at 887.)
It has been uniformly agreed that a determination as to whether changed conditions exist is a matter of contract *149interpretation—whether the conditions encountered were reasonably indicated in the contract provisions, drawings or specifications—and, thus, a question of law for courts to resolve. (Foster Constr. C. A. v United States, supra, 435 F2d, at 880-881, 886-887; Kaiser Indus. Corp. v United States, supra, 340 F2d, at 333-334; Johnson Constr. Co. v Missouri Pac. R. R. Co., 426 F Supp 639, 648; Groves & Sons & Co. v State, 50 NC App 1, 273 SE2d 465, 494, 496; Metropolitan Sewerage Commn. v R. W. Constr., 72 Wis 2d 365, 241 NW2d 371, 377; Catapano Co. v City of New York, 116 Misc 2d 163, 166.)
Since such disputes involve questions of contract construction, they fall outside the scope of article XXIV, whether the changed circumstances clause is deemed subject to mandatory or equitable adjustments.
In fact, because of the strong public policy favoring such clauses, other courts have also rejected arguments that they have been stripped of their authority to review these claims because the claims were previously denied pursuant to contractual review procedures. (See, e.g., Fattore Co. v Metropolitan Sewerage Commn., 454 F2d 537, 543; Foster Constr. C. A. v United States, supra, 435 F2d, at 880, 886, 888; James Julian Inc. v President of Town of Elkton, 341 F2d 205, 209; Kaiser Indus. Corp. v United States, supra, 340 F2d, at 329-330.) Accordingly, article XXIV is no bar to plaintiffs litigation of its changed conditions claims.
Neither is there any merit to defendant’s argument that article XXIV precludes plaintiff from litigating its claims to recover for extra work and protest work. Extra work is defined as that work necessarily required in the performance of the contract, but which arises from circumstances which could not be anticipated. (Savin Bros. v State of New York, supra, 62 AD2d, at 516.) As the primary guide in determining whether or not certain work is extra work and whether the contractor is entitled to be paid for extra work is the contract itself, clearly this presents questions of contract construction (supra, at 515).
The issue of extra work is further complicated in this case by the fact that section 6-110 of the Administrative Code of the City of New York limits a city agency when ordering additional work to not exceed an expense over 10% of the contract price. Given this limitation, the city and chief engineer will inevitably be pressured to interpret broadly the contract work requirements, while narrowly construing their *150definition of extra work, and to classify the work which contractors claim is extra work as contract work for which the contractor may not receive additional compensation. This further supports the public policy concern raised above of the inequities in the city’s position that the engineer’s conclusions on extra work are binding even if they involve erroneous constructions of the contract.
The same analysis applies with regard to the protest work claims. Protest work generally refers to that work which the contractor is ordered to perform, but which he argues lies completely outside that which was even intended by the contract. This is not a claim for extra compensation, as is the case with extra work, but rather is a claim for damages for breach of contract, and, as such, it involves questions of law, contract construction, and application of the judicially established limitations for seeking recovery on these claims. (See generally, Borough Constr. Co. v City of New York, 200 NY 149.) Interestingly, the Borough Constr. contract also contained the article XXIV dispute resolution clause, which was no bar to the court’s review of the merits of the contractor’s protest work claims.
Should the plaintiff fail to sustain its claims that the engineer erroneously construed the contract and should the city satisfy the court that particular determinations only involved factual matters typically within the engineer’s expertise, the plaintiff, then, will be bound by those determinations, absent proof they were infected by fraud, bad faith or palpable error. However, by no means may the city’s position prevail that plaintiff is barred by article XXIV from commencing this action and arguing that the engineer erroneously construed the contract. To give to the engineer, who is obligated to answer to the city, the power to conclusively bind the contractor on legal determinations and, in effect, expose the contractor to the risks of performing, without compensation, work outside the intent of the contract or improper extra work would, as we recently said in a related context, be tantamount to "conferjmg] upon the municipality the unilateral power to modify the agreement and to impose on the contractor risks which he did not assume as part of his bargain.” (Kalisch-Jarcho, Inc. v City of New York, 135 AD2d 262, 265.)
If we were to condone the city’s proposed manner of resolving construction disputes, then the contractors, who would otherwise have no effective means of redress, would simply revert back to the old practice of adding high contingency *151factors to their bids to cover the unacceptable risks of doing business with the city. (See, Foster Constr. C. A. v United States, supra, 435 F2d, at 887.) Public policy cannot tolerate such a result. Therefore, the motion to amend the pleadings to add as a defense that article XXIV bars litigation of plaintiffs claims is denied.
Accordingly, the order of the Supreme Court, New York County (Arthur Blyn, J.), entered August 4, 1986, which denied defendant’s motion for leave to amend its answer to add an affirmative defense, should be affirmed, without costs.
Contrary to the dissent’s suggestion that these issues are not properly before us, they were clearly addressed below, prompting defendants-appellants to argue on appeal against these points, and plaintiff-respondent’s brief incorporates the arguments raised below and before this court in the recent cases: Grow Tunneling Corp. v City of New York (123 AD2d 899, affd 70 NY2d 665) and Naclerio Contr. Co. v City of New York (116 AD2d 463, affd on mem below 69 NY2d 794). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902898/ | *167OPINION OF THE COURT
Per Curiam.
The petitioner, Departmental Disciplinary Committee for the First Judicial Department, moves for an order: (1) finding that the crime of which respondent has been convicted is a serious crime within the meaning of Judiciary Law § 90 (4) (d); (2) suspending respondent from the practice of law, pursuant to Judiciary Law § 90 (4) (f); and, (3) directing respondent to show cause why a final order of censure, suspension, or removal from office should not be made, pursuant to Judiciary Law § 90 (4) (g).
Respondent, Robert B. Levine, was admitted to practice as an attorney and counselor-at-law in the courts of the State of New York by the Second Judicial Department, on April 6, 1955. During the period he committed the crime of which he was convicted, respondent maintained an office for the practice of law within this Department.
In the fifth paragraph of the petition, dated April 12, 1988, the petitioner alleges, in substance, as follows: On June 16, 1987, in the United State District Court for the Southern District of New York (Vincent L. Broderick, J.), respondent was convicted, by a plea of guilty, of the crime of aiding and assisting in the filing of a false Federal corporate income tax return for the year 1981, in violation of 26 USC § 7206 (2). Thereafter, he was sentenced to two years’ imprisonment, of which three months is to be spent on weekends in custody, and the balance is suspended, three years’ probation, and, a $5,000 fine.
The petitioner has presented to this court a certified copy of the judgment of conviction, filed March 24, 1988.
By counsel, respondent has submitted an answer, dated May 19, 1988. In that answer, respondent admits that he has been convicted of a Federal felony, which "constitutes a 'serious crime’ as defined by Judiciary Law § 90 (4) (d)”, and, he requests a hearing, pursuant to Judiciary Law § 90 (4) (h).
As mentioned supra, respondent has received a sentence of probation. We held in Matter of Safran (107 AD2d 238, 240 [1st Dept 1985]), "Respondent should not be permitted to practice law while serving on probation for commission of a crime (see, Matter of Florentino, 103 AD2d 56, 58).”
Accordingly, we grant the petition in its entirety; suspend the respondent from the practice of law, pending further order *168of this court; refer the matter to the petitioner for hearing, report and recommendation; and, direct respondent to show cause why a final order of censure, suspension or removal from office should not be made.
Murphy, P. J., Sullivan, Ross, Carro and Milonas, JJ., concur.
Respondent is directed to show cause why a final order of suspension, censure or removal from office should not be made, and pending final determination of the petition, respondent is suspended from practice as an attorney and counselor-at-law in the State of New York effective immediately, and until the further order of this court. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902899/ | Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered February 24, 2010, convicting defendant, after a *461jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 13 years, concurrent with a term of 1 to 3 years for violation of probation, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant’s argument in this regard rests primarily on inferences he seeks to draw from his acquittals on the other counts of the indictment. In performing weight of evidence review, we may consider the jury’s verdict on other counts (see People v Rayam, 94 NY2d 557, 563 n [2000]). Nevertheless, we find that the mixed verdict here does not warrant a different result. “Where a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict” (People v Horne, 97 NY2d 404, 413 [2002]; see also People v Hemmings, 2 NY3d 1, 5 n [2004]).
Defendant’s principal ineffective assistance of counsel claims are unreviewable on direct appeal because they involve counsel’s strategic choices and other matters not reflected in, or not fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Among other things, the record is inconclusive as whether trial counsel actually requested submission of third-degree robbery. Although there were postverdict proceedings having some bearing on the ineffective assistance claims, those proceedings did not shed sufficient light to obviate the need for a CPL 440.10 motion.
To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Defendant was indicted for, among other things, felony murder and first-degree robbery, and there was ample evidence to support those charges. Trial counsel’s strategy was to assert that, after a hypothetical unidentified party committed the more serious charges, defendant engaged in separate criminal conduct against the surviving victim that only constituted second-degree robbery. Although this theory was speculative, counsel’s strategy was successful, in that the jury acquitted defendant of all the charges except second-degree robbery.
Nevertheless, defendant faults his counsel for failing to request a charge of third-degree robbery as a lesser included offense. Assuming, without deciding, for purposes of this appeal, that counsel never requested submission of third-degree robbery, we conclude that defendant has not established that counsel reasonably should have requested that charge, that the *462court would have submitted that charge, or that there is a reasonable probability that the jury would have convicted defendant of that charge.
There was no reasonable view of the evidence that defendant was a latecomer who only committed the limited criminal act he posits, and the jury’s verdict acquitting him of the more serious charges does not, by itself, establish the existence of such a reasonable view (cf. Rayam, 94 NY2d at 561-563). Furthermore, defendant’s theory in support of the lesser offense is essentially that he engaged in different acts from the acts forming the basis for the greater offense, and it is questionable whether this would have warranted submission of the lesser (see People v Nieves, 136 AD2d 250, 258-259 [1st Dept 1988]). We note that submission of second-degree robbeiy, which was already in the indictment, did not present the same issues as submission of a lesser offense.
Accordingly, a reasonably competent attorney could have concluded that a request for third-degree robbery would be futile, and such a request might well have been correctly rejected by the court. Finally, the jury’s verdict convicting defendant of second-degree robbery does not warrant the assumption that, if given the option, the jury would have gone further and convicted defendant of only third-degree robbery. Therefore, the present, unexpanded record fails to satisfy either the reasonableness or prejudice prongs contained in either the state or federal standards.
Defendant was not deprived of his right to effective, conflict-free representation by his attorney’s conduct in relation to defendant’s eve-of-trial request for new counsel. Counsel’s permissible defense of his own performance did not create a conflict (see People v Nelson, 27 AD3d 287 [1st Dept 2006], affd 7 NY3d 883 [2006]; see also United States v Moree, 220 F3d 65, 70-72 [2d Cir 2000]).
We have considered and rejected defendant’s challenge to the court’s suppression ruling, including his related claim of ineffective assistance, and his arguments concerning his adjudication as a second felony offender. We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Saxe, DeGrasse, AbdusSalaam and Feinman, JJ. [Prior Case History: 26 Misc 3d 1220(A), 2010 NY Slip Op 50187(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902900/ | OPINION OF THE COURT
Smith, J.
This is an appeal from a judgment convicting defendant of the crime of manslaughter in the first degree and sentencing him to an indeterminate term of 8V3 to 25 years in prison. Because of two errors made by the trial court, we reverse and remand for a new trial.
First, a charge on justification, including justification in defense of third persons, should have been given in view of the conduct which the deceased exhibited toward the defendant and his family. Second, the trial court denied defendant’s request to obtain the deceased’s psychiatric records. Those records reveal that the deceased was a man with a history of mental illness and drug addiction who was found by psychiatrists to be a danger to others, who had a history of assaultive behavior towards others and who reportedly had 17 criminal convictions. But for these omissions, the result of the trial could reasonably have been different.
*171The conviction resulted from a January 13, 1986 confrontation between the deceased, Ralph Ruiz, and defendant. Ruiz lived in the apartment next door to defendant and his family, at 112 East 103rd Street, New York County. Shortly after moving there, Ruiz engaged in a campaign of harassment against defendant and his family. The motive for this behavior appeared to be his sexual attraction to Theresa Castro, defendant’s common-law wife. The deceased’s acts of harassment, over a 2½year period, included displaying a knife to Ms. Castro, threatening to kill her and her son, drilling a peephole through the bathroom wall to view Ms. Castro, and making obscene remarks over the telephone and through the apartment walls. Ruiz also threatened defendant’s life on several occasions, at times displaying a knife. On a number of occasions defendant left his job to return home because of the deceased’s threats to his family.
The superintendent of the apartment building testified to the deceased’s reputation in the neighborhood as a dangerous person who had threatened him with a knife. The superintendent had gone to the police to complain about the deceased’s conduct. The landlord of the building where the deceased and the defendant lived testified about the deceased’s reputation for violence. A person who did plumbing jobs testified that on the date of the killing, the deceased told him he was going to kill the defendant. Defendant and his wife testified that they made numerous complaints to the police. Precinct records, however, showed only one complaint. In June 1985 defendant purchased a gun for protection.
On the day of the homicide, the deceased approached defendant, who was working in the apartment building. Defendant saw what appeared to be the handle of a knife in Ruiz’ waistband. Defendant testified that Ruiz threatened to kill him and his family that day. Ruiz also remarked that he would watch their bodies being carried out in plastic bags. Defendant’s co-worker, the person who did plumbing work, testified that he did not see a knife, but did hear the threat to kill defendant. Alarmed at the turn of events, defendant returned to his apartment and advised his wife to prepare to go to her mother’s apartment. He did not disclose the reason. Before leaving, he placed the gun in his jacket pocket.
As defendant and his family proceeded on Lexington Avenue to his mother-in-law’s apartment at 158 East 109th Street (between Lexington and Third Avenue), he observed Ruiz *172about a block away following them. After seeing his family inside his mother-in-law’s building, he returned outside. Defendant confronted Ruiz on the corner of Lexington Avenue and 108th Street and asked him why he was following them. Defendant testified that Ruiz responded that he was going to kill the defendant and his family. At the same time, Ruiz lifted up his buttoned jacket and made a movement as if to reach for a black object in his waistband. Defendant did not know whether the black object was a gun or a knife. He testified that fearing for his own life, as well as the lives of his wife and child, he pulled out his gun and fired at the deceased, who stood approximately 7 or 8 feet away. Witnesses testified that the defendant chased the deceased to the corner of 108th Street, shooting at him. When he caught up with Ruiz, defendant put the gun to his neck and pulled the trigger. The gun did not discharge. He then struck Ruiz with the gun, saying, "You shouldn’t have done that.” Defendant then fled to his mother-in-law’s building where the police arrested him. Ruiz died shortly after the shooting. Four gunshot wounds were present on the body, as well as some lacerations. A knife was found on the body, near the deceased’s waistband.
On appeal, the defendant makes two arguments which have merit: (1) that the trial court’s failure to give a justification charge which included the defense of third persons warrants reversal and dismissal of the indictment; and (2) that the trial court improperly denied the defense access to the deceased’s psychiatric records.
Penal Law § 35.05 (2) states that conduct is justifiable and not criminal when, as an emergency measure and under appropriate circumstances, it is done to avoid a private injury which is about to occur. Specifically, Penal Law § 35.05 (2) reads as follows:
"§ 35.05 Justification; generally
"Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when * * *
"2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly *173outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.”
Penal Law § 35.15 (1) authorizes the use of physical force to the extent a person reasonably believes physical force is necessary to defend himself against the use or imminent use of unlawful physical force upon himself or a third person. Penal Law § 35.15 (2) authorizes the use of deadly physical force against another under certain circumstances which include the threatened use of deadly physical force against a defendant. Penal Law § 35.15 reads as follows:
"§ 35.15 Justification; use of physical force in defense of a person
"1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
"(a) The latter’s conduct was provoked by the actor himself with intent to cause physical injury to another person; or
"(b) The actor was the initial aggressor; except that in such case his use of physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
"(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
"2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
"(a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and *174others avoid the necessity of so doing by retreating; except that he is under no duty to retreat if he is:
"(i) in his dwelling and not the initial aggressor; or
"(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant to section 35.30; or
"(b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery; or
"(c) He reasonably believes that such other person is committing or attempted to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.”
If on any reasonable view of the evidence the jury might have decided that defendant’s conduct was justified, the failure to so charge constitutes reversible error (People v Padgett, 60 NY2d 142, 145 [1983]). In considering "whether a particular theory of defense should have been charged to the jury, the evidence must be viewed in the light most favorable to the defendant” (People v Farnsworth, 65 NY2d 734, 735 [1985]; see also, People v Padgett, supra, at 144.)
A reasonable view of the evidence would support a justification charge which included the defense of defendant’s wife and child. Defendant could reasonably have believed that deadly physical force was necessary to protect both himself and his family from imminent deadly force. It should be noted that a determination of reasonableness must be based on the circumstances facing a defendant and his situation. Those circumstances include any relevant knowledge the defendant had about the potential assailant and any prior experiences defendant had which could provide a reasonable basis for his belief that the other person intended to use deadly physical force. (People v Goetz, 68 NY2d 96 [1986].)
Here, the actual confrontation occurred against a backdrop of a relentless terror campaign against defendant and his family. Defendant knew that he, as well as his wife and child, were under threat of death. He had also heard of other aggressive acts by Ruiz. On the day of the homicide, Ruiz increased the tension by threatening to kill them all that day and by pursuing them with a weapon to their mother-in-law’s house. Under these circumstances defendant could reasonably have believed that the safety of his family from imminent deadly attack was not guaranteed by their entrance into the *175building. Defendant could have reasonably feared that after disposing of him (defendant), Ruiz would proceed into the mother-in-law’s building in pursuit of Ms. Castro and her son.
In failing to include a defense of a third person in the justification charge, a defense which is supported by a reasonable view of the evidence, the trial court committed reversible error.
Second, the trial court denied the defendant’s request for the psychiatric records of Ruiz without explanation. Those records reveal that in a 1983 admission to Metropolitan Hospital, the diagnosis of Ruiz was: (1) schizophrenia, paranoid type, (2) methadone dependence, (3) antisocial personality and (4) tubercular lung lesion. The record further reveals that Ruiz had been brought to the hospital in handcuffs by the police because "he attempted arson, homicidal ideation and threats towards 'aunt’, violent behavior toward children in the neighborhood.” The record also reveals a 20-year psychological history, impaired judgment, violent and assaultive behavior and a person who "clearly represents a potential danger to others.” Although he was discharged as "much improved”, the recommendation was for continued treatment.
The denial of access to these records deprived the defense of an opportunity to fully prepare its case and present a defense.
Finally, the denial of the psychiatric records to the defendant constituted the withholding of Brady material. (See, Brady v Maryland, 373 US 83 [1963].) Those records were crucial as to who was the "initial aggressor” and as to whether defendant could retreat "with complete safety as to himself and others” in relation to the defense of justification. (Penal Law § 35.15.)
The importance of the psychiatric records becomes all the more crucial when it is noted that both defendant and prosecutor sought to elicit information concerning the deceased’s sanity. While defendant’s common-law wife, Theresa Castro, and the superintendent of the building, Angel Luis Negron, were both asked about the deceased’s tendencies toward violence and his mental state, their testimony was impeached by questions from the prosecutor, not objected to by the defendant, concerning two arrests of Castro for drugs and stealing a dress and concerning an arrest or arrests of Negron for drug activity. No conviction of either person was brought out and the questions concerning arrests, without any reference to convictions, were prejudicial.
*176Finally, were we not reversing and remanding for a new trial, we would reduce the sentence to the minimum of 2 to 6 years.
Accordingly, the judgment of the Supreme Court, New York County (Davis, J.), rendered June 11, 1986, should be reversed, on the law and the facts, and a new trial ordered.
Kupferman, J. P., Kassal, Rosenberger and Ellerin, JJ., concur.
Judgment, Supreme Court, New York County, rendered on June 11, 1986, unanimously reversed, on the law and the facts, and a new trial ordered. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902901/ | OPINION OF THE COURT
Sullivan, J. P.
At issue in this action challenging their constitutionality is the propriety of preliminarily enjoining the implementation and enforcement of certain provisions of Laws of 1986 (ch 266, § 11), the Medical Malpractice Reform Act of 1986, requiring Medical Malpractice Insurance Association (MMIA) to refund stabilization reserve fund charges which it had collected on excess policies and applied as authorized by statute to offset deficits. Since we believe that MMIA is ultimately likely to succeed on the merits, that it would be irreparably harmed if such relief were not granted and that, on balance, the equities favor it, we affirm the motion court’s grant of a preliminary injunction.
MMIA, "a non-profit unincorporated association constituting a legal entity separate and distinct from its members” (Insur*180anee Law § 5502 [b]), was created by Laws of 1975 (ch 109, § 17), after the insurer then covering most physicians and surgeons for professional liability advised that it would no longer underwrite such insurance in New York, "to provide * * * a market for medical malpractice insurance” not otherwise readily available. (Insurance Law § 5502 [c], [d].) For all insurance companies directly writing personal injury liability insurance in New York State, membership in MMIA is a condition of authority to transact business (§ 5502 [a]).
MMIA is statutorily required to provide malpractice insurance to all physician applicants with primary policy limits of $1,000,000 per claim and $3,000,000 for all claims in any one policy year. (Insurance Law § 5502 [e] [1]; see also, L 1986, ch 266, § 11.) In 1985, the Legislature mandated that all authorized insurers issuing medical malpractice insurance with the required primary policy limits provide excess coverage of at least $1,000,000 per claim and $3,000,000 aggregate for any one policy year to their insureds. (L 1985, ch 294, § 17.) MMIA was required, however, to provide excess coverage not only to its insureds but also to all applicants irrespective of the placement of their primary medical malpractice coverage. (L 1985, ch 294, §§ 17, 18; L 1986, ch 266, § 11.) Consistent with this legislative directive, MMIA offered, on and after July 1, 1985, policies of excess insurance.
MMIA, from its very inception, has been required to maintain a stabilization reserve fund for the purpose of offsetting deficits. (See, Insurance Law § 5509 [a]; L 1975, ch 109, § 17.) At the time of the commencement of this action, MMIA had collected more than $10,000,000 in stabilization reserve fund charges upon the 1985-1986 excess coverage policies which it issued. In addition, subsequent to the commencement of this action, there remained unpaid balances for stabilization reserve fund charges earned by MMIA on excess policies in effect between July 1, 1985 and June 30, 1986.
In or about July 1986, as part of the Medical Malpractice Reform Act of 1986, the Legislature enacted an amendment to section 5502 of the Insurance Law (L 1986, ch 266, § 11), known as section 11. As amended, section 5502 provides that policies furnishing excess insurance coverage, including those issued commencing July 1, 1985, "shall not be subject to the stabilization reserve fund charge established by section five thousand five hundred nine” of the Insurance Law. In addition, the 1986 amendment requires MMIA to refund excess stabilization reserve fund charges to the hospitals that have *181paid the premium and surcharge on behalf of their doctors for the period between July 1, 1985 and June 30, 1986.
MMIA’s deficit for the year ending December 31, 1985 was approximately $80 to $85 million. Even the Insurance Department has conceded that a deficit exists. At the end of the 1985 calendar year, the earned portion of the stabilization reserve fund was transferred, with the Department’s express acquiescence, to MMIA’s premium account to offset its deficit, which arose from inadequate rates in prior years. MMIA’s use of the stabilization reserve fund charges collected on excess policies to offset its deficit is authorized by Insurance Law § 5509 (a), which provides: "[MMIA] shall maintain a stabilization reserve fund. The fund shall be used for payment to the association of any deficit, or for reimbursement to the association’s members for payment of any deficit arising out of the operations of the association. A deficit shall exist whenever the sum of the premiums collected by the association and the investment income on policyholder supplied funds is exhausted in payment of the association’s administrative expenses, reserves for loss, reserve for loss adjustment expenses, loss and loss adjustment expenses, and taxes.”
It is estimated that the amended provisions of section 5502, which require MMIA to return in excess of $10,000,000 in stabilization reserve fund charges collected from hospitals on the excess coverage policies, will increase MMIA’s deficit as of December 31, 1985, to approximately $90 to $95 million. Thus, simultaneously with the commencement of this declaratory action MMIA moved "for an order preliminarily enjoining the implementation of the provision of Section 11 of chapter 266 of the Laws of 1986 that requires MMIA to refund to excess policyholders stabilization reserve fund charges collected since July 1, 1985.” The defendants, the Governor and Superintendent of the Department of Insurance, thereafter cross-moved to dismiss MMIA’s complaint for failure to state a cause of action. The motion court denied the cross motion and, as noted, enjoined the State of New York "from enforcing that provision of Section 11 of chapter 266 of the Laws of 1986 which requires MMIA to refund to excess policyholders stabilization reserve fund charges collected since July 1, 1985.” In addition, the court enjoined the State from preventing MMIA’s collection of previously uncollected stabilization reserve fund charges for policies issued between July 1, 1985 and June 30, 1986.
Where the constitutionality of a statute is challenged, an *182injunction prohibiting its implementation pending litigation is appropriate. (See, e.g., Phoenix Mut. Life Ins. Co. v Insurance Dept., 500 F Supp 2.) To withhold relief while illegal enforcement of an unconstitutional statute strips a litigant of a constitutionally protected right would defeat the purpose of the declaratory action. (Niagara Recycling v Town of Niagara, 83 AD2d 316, 328-329, 334.) The granting of such preliminary relief is contingent upon a demonstration that the moving party is likely ultimately to succeed on the merits and that, in the absence of a preliminary injunction, it will suffer irreparable injury (supra, at 324). In addition, the moving party must demonstrate that a balancing of the equities favors its position. In the circumstances presented here, the motion court correctly found that MMIA had demonstrated entitlement to a preliminary injunction.
While MMIA does not dispute the Legislature’s prerogative to regulate the insurance industry, the right to regulate by exercise of the State’s police power is not absolute. For example, in Brooks-Scanlon Co. v Railroad Commn. (251 US 396, 399), the United States Supreme Court concluded that a regulated entity "cannot be compelled to carry on even a branch of business at a loss, much less the whole business”. If section 11 is given retroactive effect, MMIA will be compelled to refund moneys that it has already collected and used partially to offset its huge deficit.1 Thus, MMIA will operate at an even greater loss.
The courts of this State have consistently held that in order to pass constitutional muster under the Due Process Clauses of the New York State and United States Constitutions, a legislative exercise of the police power must not be arbitrary or unreasonable, and it must be reasonably related to the health, comfort, safety and welfare of the community. (See, Health Ins. Assn. v Harnett, 44 NY2d 302, 309; Montgomery v Daniels, 38 NY2d. 41, 54; Paterson v University of State of N. Y., 14 NY2d 432, 438; Niagara Recycling v Town of Niagara, supra, 83 AD2d, at 326.) Where a law such as Laws of 1986 (ch 266, § 11) would have retroactive effect, the courts scrutinize the legislation more closely to examine "whether the law is reasonably calculated to serve a compelling public interest * * * and the extent to which retrospective application creates unfairness” (supra, at 326; accord, Peoples Sav. Bank v County Dollar Corp., 43 AD2d 327, affd 35 NY2d 836).
*183Moreover, retroactive legislation may not impair or destroy vested rights. (Matter of McGlone, 284 NY 527, 533, affd sub. nom. Irving Trust Co. v Day, 314 US 556; Niagara Recycling v Town of Niagara, supra, 83 AD2d, at 326.) "The ultimate evil of a deprivation of property, or better, a frustration of property rights, under the guise of an exercise of the police power is that it forces the owner to assume the cost of providing a benefit to the public without recoupment.” (French Investing Co. v City of New York, 39 NY2d 587, 596, appeal dismissed 429 US 990, rearg denied 40 NY2d 846.)
Property rights subsumed within the Fourteenth Amendment’s protection of property are broadly construed. (Board of Regents v Roth, 408 US 564, 571.) "[T]he property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money” (supra, at 571-572). MMIA’s interest in the fund is not a mere "unilateral expectation”, but rather, "a legitimate claim of entitlement” to those funds already collected from its insureds, deposited in the stabilization reserve fund and intended and used to offset its deficit. (See, supra, at 577; Webb’s Fabulous Pharmacies v Beckwith, 449 US 155, 161.) A fund existing for the benefit of a corporation’s creditors clearly is private property (Board of Regents v Roth, supra, at 577). MMIA’s interest in the stabilization reserve fund is a property interest upon which MMIA has and continues to rely, a "reliance that must not be arbitrarily undermined” (Supra, at 577).
MMIA’s right to maintain and use the amounts collected for the stabilization reserve fund is, as already noted, founded upon section 5509 (a) of the Insurance Law, which at all times relevant to this litigation, in part, provided: "[MMIA] shall maintain a stabilization reserve fund. The fund shall be used for payment to the association of any deficit”. Thus, contrary to defendants’ assertion, the statute expressly manifests MMIA’s property right in amounts collected for the stabilization reserve fund.
That MMIA has an enormous deficit, one that amounted to approximately $80 to $85 million for the year ending December 31, 1985, is beyond dispute. Thus, at the end of 1985 the earned portion of the stabilization reserve fund was transferred to MMIA’s premium account to offset its deficit. The amounts collected as stabilization reserve charges on excess policies effective between July 1985 and June 1986 have now been earned and used to offset MMIA’s ongoing deficit. Al*184though transfers to the stabilization reserve fund were made with the acquiescence of the Insurance Department, the statute does not require such consent as a precondition to transfer. (See, Insurance Law § 5509 [a].) Nor, as claimed by defendants is MMIA’s right to use the stabilization reserve fund charges to offset its deficit contingent upon or subject to the will of governmental authority.
Defendants cite Methodist Hosp. v State Ins. Fund (64 NY2d 365, appeal dismissed 474 US 801) for the proposition that a property interest cannot be asserted in a fund created by statute. This position is untenable. The rule articulated in Methodist Hosp. is not that a property interest cannot exist in a fund created by statute, but rather, that State Insurance Fund policyholders could not assert a property interest in a fund created and existing as a State agency (supra, 64 NY2d, at 374-376). MMIA is not a State agency. It is a "non-profit unincorporated association”. (Insurance Law § 5502 [b].) Moreover, its assets are not the property of the State. In particular, MMIA is required to maintain the stabilization reserve fund to offset deficits as defined by a statutory formula. (Insurance Law § 5509 [a]; accord, Webb’s Fabulous Pharmacies v Beckwith, supra, 449 US, at 161-162.) Indeed, the statute is devoid of language which would indicate even a scintilla of State control over the fund.
In support of its decision in Methodist Hosp. (supra) that the State Insurance Fund was created as and exists as a State agency, the Court of Appeals distinguished the fund from a mutual insurance company. Found determinative were the creation of the fund "as a State agency within the Department of Labor”; the administration of the fund by commissioners appointed by the Governor with the advice and consent of the Senate; custodianship of the fund by the Commissioner of Taxation and Finance; and, most importantly, the State’s acceptance of liability beyond the amount of the fund. (Supra, 64 NY2d, at 374-376.)
In striking contrast, MMIA’s stabilization reserve fund exists neither as an entity within the Insurance Department nor any other State agency. In addition, although MMIA’s board of 15 directors includes the Superintendent of Insurance as a nonvoting member (Insurance Law § 5508 [a]), the fund is administered solely by MMIA and not by any governmental entity; MMIA is the exclusive custodian of the fund; and the State does not assume liability for inadequacies in MMIA’s *185stabilization reserve fund (see, Insurance Law § 5507 [b]). In sum, the reasoning in Methodist Hosp. (supra) actually demonstrates MMIA’s legitimate property interest in the stabilization reserve fund.
The Fifth Amendment’s prohibition against the taking of private property "for public use, without just compensation” applies to the States through the Fourteenth Amendment, which bars the States from "depriving] any person of * * * property, without due process of law”. (See also, Webb’s Fabulous Pharmacies v Beckwith, 449 US 155, supra; Penn Cent. Transp. Co. v New York City, 438 US 104, reh denied 439 US 883.) New York has expressly provided these protections to its citizens through its Constitution (art I, § 6). In Hospital Assn, v Axelrod (113 AD2d 9), the Third Department concluded that the imposition upon hospitals of the cost of excess insurance coverage for their private physicians would result in an absolute appropriation of the hospitals’ property. Similarly, in the present case, an appropriation of MMIA’s stabilization reserve fund, in which it has a vested property right, would constitute an unconstitutional deprivation of property in violation of due process.
In support of their contention that enforcement of section 11 would not result in a taking in violation of MMIA’s due process rights, defendants rely upon Keystone Bituminous Coal Assn. v DeBenedictis (480 US 470, 94 L Ed 2d 472). Keystone, however, is distinguishable from the present case in that, there, the plaintiffs claimed that a Pennsylvania statute which prohibited them from mining certain underground coal constituted a taking of their private property without compensation in violation of the Fifth and Fourteenth Amendments. Noting that cases involving a taking must be decided on each case’s " 'particular facts’ ”, the Supreme Court concluded that the statute was not unconstitutional on its face (supra, 480 US, at —, 94 L Ed 2d, at 481). The court based its decision on two factors. It initially determined that the statute, which bars mining companies from engaging in activity damaging to the land surface, restrained activity that amounted to a public nuisance (supra, 480 US, at —, 94 L Ed 2d, at 488-493.) Land use regulation of this nature, it reasoned, does not constitute a taking "since no individual has a right to use his property so as to create a nuisance or otherwise harm others” (supra, 480 US, at —, n 20, 94 L Ed 2d, at 492, n 20). In addition, the court concluded that the taking claim was without merit since the plaintiffs had failed to demonstrate that the statute made *186it "commercially impracticable” for them to continue their business (supra, 480 US, at —, 94 L Ed 2d, at 493-499).
MMIA’s collection of stabilization reserve fund charges on policies effective between July 1, 1985 and June 30, 1986 is hardly analogous to the use of property in a manner that constitutes a public nuisance and, thus, section 11 cannot be justified as being necessary to the abatement of such activity. Moreover, MMIA is required to provide excess coverage insurance by legislative fiat. (L 1986, ch 266, § 11; L 1985, ch 294, §§ 17, 18.) Despite defendants’ assertions to the contrary, enforcement of section 11 would make it "commercially impracticable” for MMIA to continue to offer excess insurance. The parties are in agreement that MMIA, an insolvent insurer pursuant to the provisions of section 1309 of the Insurance Law, is saddled with a massive deficit. It is estimated that enforcement of section 11 would increase MMIA’s deficit by an amount in excess of $10,000,000 and deprive it of a precious and necessary resource with which to cope with that deficit.2 It is repugnant to the Due Process Clause of the Fourteenth Amendment of the US Constitution to compel a regulated entity "to carry on even a branch of business at a loss”. (Brooks-Scanlon Co. v Railroad Commn., supra, 251 US, at 399.) Consequently, under the "particular facts” proffered in support of the preliminary injunction, MMIA has demonstrated that enforcement of section 11 would result in a taking violative of its due process rights.
Having shown a likelihood of ultimate success on the merits of its constitutional claim, MMIA is entitled to the issuance of a preliminary injunction since, in its absence, it would be irreparably harmed and, on balance, the equities favor it. Enforcement of section 11 would cause irreparable harm to MMIA because it would be forced to refund immediately more than $10,000,000 in stabilization reserve fund charges from operating income that is necessary to meet obligations incurred with respect to excess policies effective between July 1, 1985 and June 30, 1986. In the absence of a preliminary injunction, MMIA, as a practical matter, would, despite a favorable outcome in this action, be unable to recoup the distributed funds. The amounts paid or credited to individ*187nal hospitals, if not repaid voluntarily, could not economically be recovered in plenary actions because the amounts due on the policies are small. Moreover, the administrative costs entailed in pursuing recovery of refunded stabilization reserve fund charges could not be recovered from either the Insurance Department or the individual hospital policyholders.
A balancing of the equities also commands issuance of a preliminary injunction. Defendants argue that the preliminary injunction has "altered the complicated fee reimbursement schedule of which this refund is an important component.” Significantly, however, they fail to offer any explanation as to how this unspecified schedule would be affected. It should be noted though, in light of MMIA’s likelihood of ultimate success on the merits, that a refund and subsequent recovery of the amounts refunded would seemingly compound the adverse impact on that unspecified schedule. Thus, preservation of the status quo pending a final determination of the action strikes an appropriate balance of the interests of all parties.
As is readily apparent from the foregoing, defendants’ cross motion to dismiss the complaint for failure to state a cause of action was properly denied.
Accordingly, the order of the Supreme Court, New York County (Martin Evans, J.), entered February 4, 1987, granting MMIA’s motion for a preliminary injunction and denying defendants’ cross motion to dismiss the complaint, should be affirmed, without costs or disbursements.
. MMIA is not challenging the Legislature’s power prospectively to extinguish MMIA’s right to collect stabilization reserve fund charges.
. MMIA notes that if it had reason to suspect that the Legislature could retroactively require a refund of stabilization reserve fund charges, it could have either challenged the mandate to provide excess coverage or sought a higher rate for excess coverage. (See, e.g., Hospital Assn. v Axelrod, 113 AD2d 9.) | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534809/ | IN THE SUPREME COURT OF PENNSYLVANIA
IN RE: : NO. 520
:
APPOINTMENT TO THE CRIMINAL : CRIMINAL PROCEDURAL RULES
PROCEDURAL RULES COMMITTEE : DOCKET
ORDER
PER CURIAM
AND NOW, this 15th day of May, 2020, David R. Crowley, Esquire, Centre County,
is hereby appointed as a member of the Criminal Procedural Rules Committee for a term
expiring March 1, 2023. | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902902/ | Asch, J. (dissenting).
The plaintiff Medical Malpractice Insurance Association (Association) was created by the New York Legislature in 1975 (L 1975, ch 109, § 17) to meet a crisis created by the withdrawal of the leading medical malpractice insurer from this market. The Association is an unincorporated and nonprofit group of all the insurers writing personal injury liability insurance in New York State. It is a legal entity separate and distinct from its members (Insurance Law § 5502 [b]). It offers primary policies with limits up to $1,000,000 per single claim and $3,000,000 for all claims in any one policy year (Insurance Law § 5502 [e] [1]) to physicians and surgeons who choose to apply.
All the authorized insurers which issue primary medical malpractice insurance having the policy limits described above were directed in 1985, by the Legislature, to provide excess coverage to their primary insureds of at least $1,000,000 per *188claimant and $3,000,000 for all claimants (L 1985, ch 294, § 17). However, the Association must not only offer such coverage to its own insureds in excess of the primary limits, but also must offer excess malpractice coverage to all applicants irrespective of their primary insurer (L 1986, ch 266, § 11; L 1985, ch 294, §§ 17, 18).
In connection with the initial legislation creating the Association, the Legislature set up a stabilization reserve fund which was to be used to offset any deficits arising out of its operations (Insurance Law § 5509; L 1975, ch 109, § 17). The reserve fund for primary policies was funded by the Association’s physician insureds, who were required to pay a 20% premium over the annual rate until the fund exceeded $50,000,000 (Insurance Law § 5509 [b]).
In reform legislation enacted in 1985 to ameliorate the burden of exorbitant insurance premiums on practicing physicians, the Legislature provided that the premium and the 20% reserve fund premium charge for excess policies effective between July 1, 1985 and June 30, 1986 were to be paid by the hospital for any attending physician at such hospital (L 1985, ch 294, § 19).
The Association issued these excess policies subject to the same 20% surcharge which it applied to all primary policies and, as a result, it collected large premium amounts from hospitals for the excess coverage, with the 20% surcharge being deposited into the stabilization reserve fund.
The Medical Malpractice Reform Act of 1986 (L 1986, ch 266) was enacted to correct the "upward pressure on already high malpractice premiums” (L 1986, ch 266, § 1). To reduce the costs of malpractice insurance, the Legislature enacted various changes to the Insurance Law, including giving authority to the Superintendent of Insurance to establish medical malpractice insurance rates for the period commencing July 1, 1985 through June 30, 1988, and providing that the Superintendent could establish surcharges on premiums after July 1, 1989, to satisfy any projected deficits as a result of the rates established for the target period of 1985-1988 (see, Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins., — AD2d —, — [Asch, J., dissenting]).
To further ameliorate the burden on physicians and to meet the spiraling costs of health care, the Legislature provided that excess policies, including those issued in the retrospective period of 1985-1986, would not be subject to the stabilization *189reserve fund charge (Insurance Law § 5502, as amended by Laws of 1986, ch 266). This amendment additionally provided that the Association should refund or credit the accounts of hospitals which paid this surcharge on excess insurance on behalf of physicians during the retrospective period.
These provisions (L 1986, ch 266, §§ 11, 40) precipitated the instant declaratory judgment action by the Association. It sought a declaration that Laws of 1986 (ch 266, §§ 11, 40) are invalid under the US and NY Constitutions, in that they deprive the Association of due process of law, interfere with vested property rights and abrogate preexisting contractual obligations.
The court at nisi prius denied the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 but did not address the issues raised by the parties with respect to section 40 and the rates promulgated thereunder by the Superintendent’s use of surcharges after July 1, 1989 to keep the rates in the 1985-1988 target period as low as possible. Since this was challenged by plaintiff and discussed in Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. (supra [dissent by Asch, J.]), and since for the most part the parties do not address this issue on this appeal, I will confine my discussion to Laws of 1986 (ch 266, § 11), the court’s denial of defendants’ motion to dismiss as to that claim and its grant of a preliminary injunction enjoining the implementation of section 11.
It is black letter law that courts will strongly presume the constitutionality of a legislative enactment. Statutes will be struck down only as a last resort when unconstitutionality is shown beyond a reasonable doubt (I.L.F.Y. Co. v City Rent & Rehabilitation Admin., 11 NY2d 480, 490). Our Court of Appeals has cogently stated the test under both our Federal and State Constitutions as follows: "In West Coast Hotel Co. v Parrish (300 US 379, 391) the United States Supreme Court stated that ’regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process’. Thus where a statute is challenged on nonprocedural grounds as violative of due process of law we have consistently asked the question whether there is ’ ’’ ’some fair, just and reasonable connection’ between it and the promotion of the health, comfort, safety and welfare of society” ’. (Nettleton Co. v Diamond, 27 NY2d 182, 193, app dsmd sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; People v Pagnotta, 25 NY2d 333, 337; People v Bunis, 9 NY2d 1, 4; Defiance Milk Prods. Co. v Du Mond, 309 NY 537, 541.)” *190(Montgomery v Daniels, 38 NY2d 41, 54.) Further, that court noted that if the law is reasonably related to the promotion of public welfare and is, therefore, a legitimate exercise of the State’s police power, it need not represent the only or even the wisest method the Legislature could have utilized to meet the perceived need (supra, at 56).
Neither the Federal nor State Constitutions (with the exception of the proscription of bills of attainder and ex post facto laws in the former [art I, §§ 9, 10]) contain any prohibition against retroactive laws per se. In determining the validity of such laws, it has been stated generally that only those which impair or destroy vested property rights will be deemed unconstitutional (see, Saltser & Weinsier v McGoldrick, 295 NY 499, 509).
However, even this principle is regarded as too broad a restriction, unless vested rights are deemed to be property interests so substantial as to justify governmental deprivation in light of the objectives to be achieved by the governmental action (see, People v Miller, 304 NY 105).
Thus, it has been stated by Judge (then Justice) Titone that: "The retrospective application of new legislation may offend the due process clause if, upon balancing the considerations on both sides, it appears that retrospective application would be unreasonable (see Chase Securities Corp. v Donaldson, 325 US 304). In determining the reasonableness of retrospective application, the 'rigidities of old theories of "vested rights” ’ have been rejected in favor of the consideration of several factors, i.e., fairness to the parties, reliance on pre-existing law, the extent of retroactivity, and the nature of the public interest to be served by the law (see Matter of Chrysler Props. v Morris, 23 NY2d 515, 518, 521; Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv L Rev 692, 697).” (Valladares v Valladares, 80 AD2d 244, 251, affd 55 NY2d 388.)
Plaintiff contends that section 11 refunding or crediting the excess premiums to the hospitals which paid them in the 1985-1986 period constitutes a deprivation of its vested property interest in that stabilization reserve fund, that it violates the 14th Amendment of the US Constitution and section 6 of article I, of the NY Constitution, since it is arbitrary and bears no rational relationship to any valid State interest. Further, plaintiff contends section 11 also violates section 10 of article I of the US Constitution, in that it impairs existing *191contracts and other relations between it and its excess policyholders.
Property rights or interests, such as that claimed by plaintiff in the stabilization reserve fund, may be based upon statute, contract or from an agreement reasonably implied from the promisor’s words or conduct (Perry v Sindermann, 408 US 593, 602). They are not created by the Constitution and/or by a simple subjective expectancy, but must be found in an independent source such as State law (supra, at 602, n 7; 603; Board of Regents v Roth, 408 US 564, 577).
When the Legislature enacted the stabilization reserve fund, it did so because it recognized that the rates might prove to be inadequate. Thus, it provided for the 20% surcharge to be utilized "for payment to the association of any deficit * * * arising out of the operations of the association” (Insurance Law § 5509 [a] [formerly § 688]).
It is clear the Legislature never intended that these funds were to be the absolute property of the Association since the act provides for the return of the moneys paid to the policyholders, upon termination of the Association, if there are excess funds then remaining (Insurance Law § 5509 [c]).
The fund is held by the Association separately in a trust and its use is strictly limited by statute, subject to the consent of the Department of Insurance. Thus, there is no vested property right to the 1985-1986 surcharges within the meaning of Roth (supra). (See, Methodist Hosp. v State Ins. Fund, 64 NY2d 365; see also, American Ins. Assn. v Bouchard, 102 AD2d 775, mod on other grounds sub nom. American Ins. Assn. v Chu, 64 NY2d 379, appeal dismissed and cert denied 474 US 803.)
Section 11 promotes the interest of this State in reducing the cost of health care. The large payments into the stabilization reserve fund were not anticipated by the Legislature. These arose only because the Association became, by default, the insurer of the great majority of the policies of excess coverage. When the Reform Act of 1986 was enacted, the Legislature decreed that a partial return of the 1985-1986 surcharge would promote fairness and reduce costs to the health care community. Since the statute which was corrected had been in effect for less than a year, the Legislature modified its unanticipated results by the remedial enactment of section 11. Thus, the Legislature acted "in pursuit of permissible State objectives” in enacting section 11, and the *192means it adopted, i.e., refunding payments to the hospitals which are primarily responsible for the excess premiums payments, "were * * * reasonably related to the accomplishment of those objectives” (Montgomery v Daniels, supra, at 54).
The surcharge herein was imposed not by the terms of the contracts of insurance between the plaintiff Association and its insureds, but by the application of Insurance Law article 55. Thus, there can be no viable impairment of contract claim.
Even assuming the legislation does interfere with plaintiffs contracts with third parties, there is no unconstitutional impairment since the legislation is addressed to a legitimate end and the means employed to obtain that end are reasonable and appropriate (Matter of Farrell v Drew, 19 NY2d 486, 493; see also, United States Trust Co. v New Jersey, 431 US 1, 22-23) and any claimed impairment is not such a substantial one as to merit constitutional scrutiny (Allied Structural Steel Co. v Spannaus, 438 US 234).
Plaintiff has not only failed to make a showing of the likelihood of its success on the merits as detailed above, but it has also not shown irreparable harm absent a grant of injunctive relief. Assuming, arguendo, plaintiff prevails in this action, both it and the Department of Health, under that agency’s statutory control of hospitals pursuant to article 28 of the Public Health Law, would have the ability to require the hospitals to return any moneys paid. Finally, a balancing of the equities also does not favor injunctive relief. Delay of the refunds authorized by section 11 will interfere with the hospital fee reimbursement schedule and the Legislature’s plan to lower health care costs. Denial will simply work a temporary monetary harm upon plaintiff, which can be fully recovered by it if it prevails.
Accordingly, I would reverse the order of the Supreme Court, New York County (Martin Evans, J.), entered February 4, 1987, deny plaintiffs motion for a preliminary injunction of the implementation of Laws of 1986 (ch 266, § 11) and grant defendants’ cross motion to dismiss the complaint.
Carro and Smith, JJ., concur with Sullivan, J. P.; Asch and Milonas, JJ., dissent in an opinion by Asch, J.
Order, Supreme Court, New York County, entered on February 4, 1987, affirmed, without costs and without disbursements. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902903/ | OPINION OF THE COURT
Thompson, J. P.
We address on this appeal, inter alia, whether loss of enjoyment of life is a compensable element of damages apart from a specific award of damages for pain and suffering. The trial court’s instructions to the jury and its submission of interrogatories permitted the jury to assess the loss of enjoyment of life as a distinct item of damages. Upon the facts of this particular case, we find that the trial court did not err in *195delivering a loss of enjoyment of life instruction in addition to the usual instruction pertaining to pain and suffering. The question of whether an award of damages for loss of the normal pursuits and pleasures of life is encompassed within general damages for pain and suffering or constitutes a separate category of damages is essentially semantical because a clear distinction may be drawn between the concepts of pain and suffering and loss of enjoyment of life. Permitting an independent award for loss of enjoyment simply enunciates this court’s recognition of the conceptual differences between these two types of damages. We therefore affirm the judgment in favor of the plaintiff in its entirety.
I
The following facts giving rise to this controversy are essentially not in dispute. On September 21, 1982, the plaintiff’s decedent, 32-year-old Elaine Celetti, visited her gynecologist, the defendant Dr. Alan Gibstein, for her annual checkup. At that time, Dr. Gibstein made note of a one-centimeter mass on the outside lower quadrant of Mrs. Celetti’s left breast which he tentatively classified as a galactocele, i.e., a milk-filled cyst. No further tests were performed. Ten months later in July 1983 Mrs. Celetti returned to Dr. Gibstein complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in Mrs. Celetti’s breast was diagnosed as cancer which had metastasized, i.e., spread, to three ribs and two vertebrae. Elaine Celetti died nearly two years later on June 8, 1985, as a result of the extensive metastasis of the cancer leaving as the sole distributee of her estate her then four-year-old daughter Jessica.
In this action commenced to recover damages for conscious pain and suffering and wrongful death, Dr. Gibstein and his professional corporation are charged with various acts of malpractice stemming from his failure to properly diagnose Mrs. Celetti’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the defendants 90% liable and the plaintiff’s decedent 10% contributorily negligent, rendered the following itemized award of damages, in accordance with the court’s instructions and special interrogatories:
*196A. First Cause of Action:
1. Conscious Pain and Suffering $300,000
2. Loss of Enjoyment of Life $200,000
$500,000
Wrongful Death Cause of Action:
1. Loss of Support $ 75,000
2. Loss of Household Services $100,000
3. Cost of College Education in the future $ 25,000
4. Loss of Prospective Inheritance $ 75,000
5. Loss of Parental Guidance, Care and Nurture $100,000
$375,000
The defendants immediately moved to set aside the verdict on the grounds, inter alia, that as to liability the verdict was against the weight of the evidence and inconsistent. The defendants further charged that the damages awarded were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the plaintiff’s decedent. The reductions made as to the total amounts awarded on each cause of action are reflected in the judgment as follows:
First Cause of Action $450,000
Wrongful Death Cause of Action $337,500
$787,500.
The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The defendants appeal, arguing that (1) the verdict as to liability is against the weight of the credible evidence adduced at the trial, (2) the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and (3) the awards to Mrs. Celetti’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.
II
We affirm the trial court’s denial of the defendants’ *197motion to set aside the verdict in favor of the plaintiff as against the weight of the evidence. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129, 134). On such a review, the evidence must be viewed in a light most favorable to the plaintiff to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the defendant (see, Cohen v Hallmark Cards, 45 NY2d 493, 497). So viewed, we find ample basis in the record to support the jury’s verdict.
One of the key issues in controversy at trial was whether the lump Dr. Gibstein first noticed in Elaine Celetti’s breast in September 1982 was the same as the cancerous tumor surgically removed from the decedent’s breast one year later. Dr. Gibstein, a specialist in obstetrics and gynecology who had also completed a fellowship in oncology, first noted the lump measuring one centimeter in size in Mrs. Celetti’s breast during a routine physical examination performed in September 1982. Apparently because of the decedent’s history of being cystic, Dr. Gibstein was not overly concerned about the lump upon its initial appearance. According to Dr. Gibstein’s trial testimony, after making a tentative determination that the lump was a one-centimeter galactocele and making a diagram indicating the location of the lump, Dr. Gibstein advised Mrs. Celetti to return for a follow-up examination in 2 or 3 months. Dr. Gibstein conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the decedent to examine her breasts during the intervening period. Dr. Gibstein’s office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to Mrs. Celetti.
Upon the decedent’s return to his office 10 months later in July 1983 Dr. Gibstein examined the lump of which the decedent then complained and was of the opinion that while it was near the site of the September 1982 lump, the respective masses were in fact in entirely different locations. Dr. Gibstein, fearing the lump might be cancerous, directed Mrs. Celetti to return for a reexamination following her next menstrual period. In August 1983 Dr. Gibstein recommended that the decedent undergo a mammography and, based upon *198those results, he referred her to Dr. Louis Lester for a surgical consultation. Dr. Gibstein learned from Dr. Lester that the decedent had been diagnosed as having intraductal, infiltrating duct carcinoma with a finding of distant metastasis. A stage four cancer1 of the type Mrs. Celetti was diagnosed as having in September 1983 had an extremely poor prognosis. In response to a hypothetical posed by plaintiffs counsel, Dr. Gibstein conceded that if the lump found in September 1982 was cancerous, it would have been a stage one cancer with an excellent rate of survival.
In the course of Mrs. Celetti’s examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that Dr. Gibstein had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the decedent to return to Dr. Gibstein in July 1983. During that examination, Mrs. Celetti saw a diagram in her file with an "X” where the lump was. To her surprise, Dr. Gibstein had been aware of the lump, identified it as a cyst and reassured her that he was "watching it”. No recommendation was issued that a mammography be performed or another physician be consulted. Dr. Gibstein simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted Dr. Lester upon the defendant’s recommendation did Mrs. Celetti learn the gravity of her condition. Dr. Lester was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a lumpectomy rather than a mastectomy was later performed. Following surgery, the decedent was placed on a regimen of hormonal therapy and later chemotherapy.
Testimony was elicited from the plaintiff’s expert Dr. Mi*199chael Scoppetuolo, a specialist in internal medicine and oncology and her subsequent treating physician, that the one-centimeter breast lesion palpated by Dr. Gibstein in September 1982 was the same as the 2.5-centimeter tumor which was removed in September 1983 since the tumor was in the exact same spot as the lesion. In his professional opinion, the mass found in September 1982 was a stage one cancer with an 80% cure rate. Dr. Scoppetuolo testified that Dr. Gibstein’s care and treatment of the decedent constituted a departure from good practice and acceptable medical standards in the community based upon (1) his failure to follow up his September 1982 examination of the decedent by timely reexamination after her next menstrual cycle or to order a mammogram upon discovery of the one-centimeter mass, and (2) his failure to tell the decedent in September 1982 of the existence of the lump and to instruct her to examine herself.
The defendants’ expert evidence consisting of the testimony of Dr. Harold Schulman, a specialist in obstetrics and gynecology, and Dr. William Ober, a pathologist, was presented to refute the allegations of malpractice. The defendants’ experts were consistent in their opinion that although the lesion which was palpated in September 1982 was in the same location as the tumor removed in September 1983 the former did not lead to the latter. The basis for this opinion was the theory of "doubling times” which refers to the growth rate of tumors. According to the "doubling times” concept of oncology, a tumerous mass hypothetically doubles in size every 60 days. If this theory were followed in its strictest sense the decedent’s September 1983 tumor would not have been palpable in September 1982. However, the defendants’ experts agreed that studies measuring the growth rate in the human breast as opposed to the laboratory have shown doubling times ranging from 20 to 209 days. Dr. Schulman also conceded that the failure to take any measures following the discovery of a lesion in Mrs. Celetti’s breast in September 1982 would have been a departure from accepted medical practice. His opinion that Dr. Gibstein had acted in accordance with accepted medical standards in the community stemmed from his rejection of the decedent’s statements that Dr. Gibstein did not tell her about the lump.
With due deference to the jury’s determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponder*200ated in favor of the defendants that the jury could not have reached their conclusion upon any fair interpretation of the evidence (see, Cohen v Hallmark Cards, supra; Nicastro v Park, supra, at 134-135). Viewing the entire body of evidence, it was entirely plausible for the jury to conclude that the lesion noted in the decedent’s medical record in 1982 developed into the malignant tumor removed in 1983 and to find that Dr. Gibstein was negligent in failing to order tests or to follow up his initial examination to check the condition of the lump. The total verdict reflected a thoughtful evaluation of the evidence and not merely a determination, as the defendants suggest on this appeal, which reflected an overriding sympathy for the decedent’s infant daughter. Therefore, the verdict as to liability must stand.
Ill
A
The defendants’ remaining arguments relate to the calculation of damages. Principally, in this regard, the defendants assign error to the trial court’s instructions to the jury that the plaintiff was entitled to compensation for the loss of enjoyment of life as a distinct item of damages. The defendants urge that that submission to the jury compelled an award of double compensation in contravention of CPLR 4111 (d). The court charged the jury with respect to damages for pain and suffering and loss of enjoyment of life, in part, as follows:
"With respect to the cause of action for the pain and suffering, physical and emotional allegedly undergone by Miss [sic] Celetti for the year and nine months immediately preceding her death from September of ’83 to June 8, 1985 when she died, her estate is entitled to recover for all of the conscious pain, physical pain and suffering and disability Miss [sic] Celetti underwent during said one year and nine months as a result of the defendants’ negligence. Her estate is entitled to recover damages for any mental suffering, including emotional disturbances undergone by her during the one year and nine months as a result of the defendants’ negligence.
"Additionally, her estate is entitled to recover for any loss of the normal pursuits of pleasures of daily life attributable to defendants’ negligence during that one year and nine month period. The normal pursuit and pleasures of life encompass all those things that make up life’s pleasure.
*201"Any award for the loss of the normal pursuits and pleasures of life is to be separate and distinct from an award for any conscious pursuit [sic] of suffering and death result[. With] respect to the action of the wrongful death, the measure of damage is fixed by statute”.
The issue of damages was also submitted to the jury on carefully framed interrogatories which, inter alia, instructed the jury to state separately its award compensating the decedent for "conscious physical and emotional pain and suffering” and for "loss of the enjoyment of the pursuits and pleasures of life”. The jury awarded the plaintiff damages in the sum of $300,000 for conscious pain and suffering and $200,000 for loss of enjoyment of life which the Trial Judge reduced by the 10% of the fault attributable to the plaintiff’s decedent for a total award as to these items of $450,000.
At the outset, we note that the defendants make no argument as to the excessiveness of damages for the pain endured by the decedent until her death. The evidence adduced at trial demonstrated overwhelmingly that the decedent endured intense physical and emotional suffering directly stemming from the cancer and the treatments she received. Nor can there be any doubt that prior to her death Mrs. Celetti lost her capacity to enjoy the normal pursuits and pleasures of life.
At the time her condition was first diagnosed, Mrs. Celetti, then a 32-year-old mother of a young child, was in the process of obtaining a divorce from her husband who contributed nothing toward her own or her child’s support. Although after the birth of her daughter Jessica the decedent had discontinued working outside the home, she was certified as a teacher for kindergarten through twelfth grade and had been a permanent substitute teacher in the Lawrence School District for IV2 years prior to Jessica’s birth. She held undergraduate degrees in art education and psychology and was working toward obtaining an advanced degree in psychology in preparation for a child psychology program. Mrs. Celetti had always been a very self-sufficient and independent person. She had fully participated in the daily activities of her child including frequent outings with other children to the zoo, the park, the beach and other entertainment and recreational activities. Because of her rapidly deteriorating physical condition and the negative effects of the medical treatment, the decedent’s life changed to a tragically radical degree. Mrs. Celetti initially underwent two months of hormone therapy which was *202discontinued when she stopped responding. Mrs. Celetti began experiencing excruciating pain in her right leg which was determined to be caused by an additional lesion. She was then placed on a program of pain killers including morphine and methadone which her treating physician testified only dulled the recognition of pain in the brain but did not eliminate the pain. She also received a combination of five chemotherapy drugs which caused debilitating side effects. Mrs. Celetti became constipated, weak and tired, suffered from insomnia and began losing weight at the rate of 2 or 3 pounds per week. Her bones became very brittle and she was warned by her physicians to be very careful to avoid breaking them. In fact, Mrs. Celetti had to be hospitalized on three separate occasions for hypocalcemia which is an elevation of calcium in the blood causing sleeplessness, lethargy, confusion, difficulty in walking, severe dehydration and ultimately death. The continuous vomiting caused by the chemotherapy resulted in dental infections and the loss of six teeth which Mrs. Celetti had to have extracted with only a minimal amount of novocaine due to the chemotherapy.
The decedent became a virtual invalid. She relied on a homemaker, her friends and family to care for her child, to shop for her, to clean her house, to prepare meals and to drive her to the hospital. She had no physical strength. She was too weak to pick up her daughter or to perform any type of housework. Moreover, because of her weakened bones the decedent was afraid to go to any crowded places such as a train station or shopping mall for fear of being hit in her ribs or vertebrae. In any event, she was physically unable to shop for herself. Her social life became nonexistent.
Perhaps the more difficult pain for Mrs. Celetti was the emotional and psychological pain she suffered as a result of the loss of control over her life, the changed attitudes toward her of her family and friends and the strain of her illness on her relationship with her daughter. Her daughter was greatly affected by her illness and had difficulty understanding why her mother could no longer participate in activities with her. While the decedent arranged for Jessica to be raised by her brother and sister-in-law who have three sons, she was saddened that she could bear no other children to provide brothers and sisters for Jessica.
In view of the decedent’s extensive losses and suffering, the aggregate award on the first cause of action was well within the bounds of reason. The question remains whether, *203notwithstanding the reasonableness of the award, the trial court correctly included in its instructions on damages a separate instruction on loss of enjoyment of life. We are of the opinion that the trial court’s instructions to the jury were entirely proper.
Initially, we observe that several decisions issuing from this judicial department have recognized the loss of the normal pursuits and pleasures of life as a proper component in assessing general damages for pain and suffering (see, e.g., Kavanaugh v Nussbaum, 129 AD2d 559, 564, mod on other grounds 71 NY2d 535; Ledogar v Giordano, 122 AD2d 834, 838, appeal withdrawn 68 NY2d 911; Gallo v Supermarkets Gen. Corp., 112 AD2d 345, lv denied 66 NY2d 605). Review of those decisions indicates that the question of whether a separate award for loss of enjoyment of life is permissible was not presented to or addressed by the court and the award for loss of enjoyment was simply collateral to the question of whether the award for pain and suffering constituted fair compensation for the injuries suffered. Consistent with the determinations of this judicial department is the interpretation of New York law (28 USC § 1346 [b]) by the United States Court of Appeals for the Second Circuit which similarly upheld as proper the consideration of loss of enjoyment of life as a factor in determining general damages (see, Modave v Long Is. Jewish Med. Center, 501 F2d 1065, 1079; Lebrecht v Bethlehem Steel Corp., 402 F2d 585, 592; Grunenthal v Long Is. R. R. Co., 388 F2d 480, 484, read on other grounds 393 US 156).
The current debate reduces to a question of whether this court should remain bound by the characterization of the impairment of capacity to enjoy life as primarily an element of pain and suffering or should permit an explicit independent recovery therefor.
Of the courts in our sister States that have considered the issue, a majority continue to allow for consideration of loss of enjoyment only as one of the factors in assessing general damages for pain and suffering (see generally, Annotation, Damages Element-Loss of Enjoyment of Life, 34 ALR4th 293, 300-304; Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac LJ 965, 967 [1981]). One of the major arguments advanced against allowing an independent recovery for loss of enjoyment of life is that it would encourage excessive damage awards and result in double compensation for the plaintiff, particularly in jury trials (see, e.g., Huff v Tracy, 57 Cal App 3d 939, 944, 129 Cal Rptr 551, 553; Poyzer v *204McGraw, 360 NW2d 748, 752-753 [Iowa]; Santa Rosa Med. Center v Robinson, 560 SW2d 751, 760-762 [Tex Civ App]; see also, Comment, Loss of Enjoyment of Life—Should it be a Compensable Element of Personal Injury Damages?, 11 Wake Forest L Rev 459, 466 [1975]).
The sole appellate authority in New York which squarely addresses this issue is the recent decision of our colleagues in the Appellate Division, First Department, in the case of McDougald v Garber (135 AD2d 80, lv granted 138 AD2d 268). McDougald involved a 31-year-old comatose woman on whose behalf a medical malpractice action was commenced to recover compensation for the severe and permanent neurological injury which she sustained during the course of a Cesarean section negligently performed by the defendant doctors. At trial, the parties sharply disputed the extent of the plaintiff’s ability to appreciate her condition and experience pain. Because of the conflicting proof relating to the plaintiff’s level of consciousness, the trial court instructed the jury to consider the loss of enjoyment of life separately from pain and suffering. On the appeal, the defendants sought the elimination of the jury award for loss of enjoyment of life. The defendants argued that the loss of enjoyment was inseparable from pain and suffering. Hence, since pain and suffering was not compensable absent a conscious awareness, neither could a recovery for loss of enjoyment be obtained under like circumstances. The First Department rejected the defendants’ argument, finding instead that a marked conceptual difference existed between pain and suffering and loss of enjoyment of life which permitted their submission to the jury as separate components of damages. In concluding its discussion of this issue, the court stated: "A loss of enjoyment of life claim should, therefore, consonant with the purpose and spirit of CPLR 4111 (d), which requires an itemization of malpractice awards, be submitted as a separate element of damages, even though it is not explicitly listed therein as an element, while pain and suffering is. It should be noted that the section’s listing of damage elements is expressly stated to be noninclusive. Moreover, in this case, the separate submission of the loss of enjoyment claim has the advantage of facilitating appellate review of the issue of excessiveness of damages and segregating the claim, which does not require a showing of cognitive awareness, from conscious pain and suffering, which does” (McDougald v Garber, supra, at 94).
*205In arriving at this determination, the First Department’s decision appears to hinge on the underlying purpose of tort damages, i.e., to compensate for each injury suffered so as to make the injured party whole (McDougald v Garber, 132 Misc 2d 457, 462, affd 135 AD2d 80, lv granted 138 AD2d 268, supra).
The decision of the United States Court of Appeals for the Second Circuit in Rufino v United States (829 F2d 354) turned upon its assessment of the opinion of the Supreme Court, New York County, in McDougald (supra) and its prediction that the appellate courts in New York would adopt the trial court’s reasoning that loss of enjoyment of life was a separately compensable item of damages irrespective of the injured plaintiff’s cognitive awareness.2 Like McDougald, the plaintiff in Rufino had no conscious awareness of his condition. He was in a chronic vegetative state as the result of the defendant’s negligence in monitoring his condition following cardiac surgery which led to his being deprived of oxygen and suffering massive brain damage. The trial court awarded minimal damages for pain and suffering based upon evidence of the plaintiff’s limited conscious pain and suffering. However, because of his lack of cognitive awareness and, by extension, his ability to appreciate the pursuits and pleasures of life and the resulting loss, the trial court refused to consider the issue of loss of enjoyment of life with respect to the plaintiff’s damages. The Second Circuit made no definitive ruling of whether loss of enjoyment should be separately compensable because questions of damages in Federal cases are required to be resolved according to New York law. The absence of appellate decisions on this issue deprived the Second Circuit of State judicial precedent upon which to resolve the matter. Nevertheless, the matter was remitted to the District Court because it had failed to consider loss of enjoyment of life as either a *206separate item of damages or as a factor in determining pain and suffering.3
The rule of McDougald and Rufino (supra) appears to be predicated on the distinction between the concepts of pain and suffering and loss of enjoyment of life. One commentator, in urging that loss of enjoyment be separately compensable, described at length the characteristics distinguishing each item of damages (Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac LJ 965, 969-973 [1981]). For the sake of brevity that discussion may be condensed to the characterization of pain as the physiological response to the corporeal injury while suffering refers to the emotional or psychological reaction to these sensations. Loss of enjoyment of life, however, involves the impairment of a person’s ability to perform those functions or engage in activities which were part of one’s life prior to the injury-causing event. The commentator went on to note that because of the distinguishing features of each, the type of proof relative to each would be different. Loss of enjoyment would require evidence of the nature and extent of the injured plaintiff’s life-style prior to being injured and the limitations on his or her enjoyment of the pursuits and pleasures of life following the injury. In contrast, proof of pain and suffering would require production of evidence of a corporeal injury and the accompanying physical sensations and emotional response (Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac LJ 965, 978-979 [1981]).
Because of what were deemed to be the unique characteristics of each element of damages, the First Department in McDougald (supra) found that carefully drafted instructions requiring the jury to award separate monetary amounts for each component of damages would facilitate the appellate process by providing a better framework for reviewing the award and determining whether it is excessive. It would *207further remove an element of speculation from the appellate process, enhancing both the court’s understanding of the various elements of the damages awarded as well as the litigants’ assessment of whether to appeal the damage award.
Noteworthy in this regard is the fact that even the courts that initially were inclined to permit independent assessment of damages for loss of enjoyment of life were reluctant to permit juries to make such awards presumably because of a lack of confidence in the jury’s ability to distinguish between pain and suffering and loss of enjoyment of life (see generally, Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac LJ 965, 979-980 [1981]; Thompson v National R. R. Passenger Corp., 621 F2d 814, cert denied 449 US 1035; Pierce v New York Cent. R. R. Co., 409 F2d 1392). In Pierce v New York Cent. R. R. Co. (supra), involving a negligence claim brought on behalf of an eight-year-old boy who lost a foot when he fell under one of the defendant’s trains, the United States Court of Appeals for the Sixth Circuit held that upon the trial without a jury Michigan law permitted the District Judge to make distinct awards for pain and suffering and loss of enjoyment of life. The Pierce rationale, similar to that employed in McDougald (supra), was that the recognition of the distinction between the two elements of damages facilitated the appellate process by delineating the basis of the trial court’s decision and providing an additional safeguard against excessiveness. However, the Sixth Circuit in Pierce was not prepared to say that Michigan law would authorize, in the event of a jury trial, the submission of loss of life’s enjoyments to a jury as an item of damages separate from pain and suffering.
The Sixth Circuit followed a similar approach in Thompson v National R. R. Passenger Corp. (supra), upon which the trial court in McDougald (supra) placed considerable reliance. Thompson involved the consolidated cases brought by passengers who sustained injuries in the derailment of an Amtrak passenger train. The Sixth Circuit affirmed a nonjury verdict granting separate awards of damages to compensate for the impairment of enjoyment of life and pain and suffering. In concluding that Tennessee law permitted such discrete awards, the court stressed the conceptual differences between the two elements of damages.
No logical purpose would be served by drawing a distinction between jury and nonjury trials in this context. We do not deem the reasoning required to distinguish between pain and *208suffering and loss of enjoyment of life to be so sophisticated as to preclude placing the determination concerning the amount of compensation for each item of damages in the hands of a jury. A jury, if properly instructed, is fully capable of discerning between the two elements of damages. Indeed, as an element of general damages New York has already permitted juries to compute damages for loss of enjoyment of life. Little more than a semantical leap is required to bridge the gap between the existing decisional law and recognition of loss of enjoyment as an independent item of damages. The benefits to be derived from our determination herein can hardly be gainsaid. As noted by Justice Gammerman in McDougald v Garber (132 Misc 2d 457, affd 135 AD2d 80, supra) and reaffirmed by the Appellate Division, First Department, on appeal (McDougald v Garber, 135 AD2d 80, supra), carefully drafted jury instructions which convey the nature of loss of enjoyment of life and pain and suffering and their application to the facts of the particular case would avoid the danger of duplicitous awards of damages. Indeed, by requiring the jury to award separate monetary amounts for the various components of damages for personal injuries the court will have a better framework for reviewing the award and determining if it is excessive. It would further remove an element of speculation from the appellate process and thereby facilitate the appellate court’s understanding of the various elements of the damages award. Furthermore, allowing separate awards would benefit the litigants by allowing them to ascertain the exact dollar amount awarded for each element of damages, thereby aiding in the decision as to whether or not to appeal an award of damages. The damages awarded in the instant case provide a persuasive example of the jury’s ability to understand and follow instructions pertaining to the components of compensable damages. The amounts awarded by the jury herein for pain and suffering and loss of enjoyment of life, when taken as an aggregate, are clearly not excessive or duplicative.
Our conclusion is supported by several decisions in our sister State jurisdictions. The Nebraska Supreme Court in Swiler v Baker’s Super Mkt. (203 Neb 183, 277 NW2d 697), while affirming a jury award of general damages, addressed the question of whether a separate damage award for loss of enjoyment of life was permissible and concluded that in certain circumstances the jury should be so instructed. The Swiler court stated that: "Loss of enjoyment of life may, in a particular case flow from a disability and be simply a part *209thereof, and where the evidence supports it, may be argued to the jury. A separate instruction therein may be redundant. We do not recommend such an instruction be given, but find that under the facts of this particular case, where there is evidence from which the jury could find the injuries and resulting disability did cause loss of enjoyment of life, there was no error in giving the instruction, and we do not believe the jury was in any way misled” (Swiler v Baker’s Super Mkt., supra, 203 Neb, at 187-188, 277 NW2d, at 700).
This language seems to suggest that an instruction to the jury to consider loss of enjoyment as a separate element of damages is appropriate in certain instances.
Similarly, in Mariner v Marsden (610 P2d 6 [Wyo]), which relied substantially upon the decision in Swiler (supra), the court held that loss of enjoyment of life is a compensable element of damages in addition to compensation for pain and suffering. That case involved an appeal in a negligence action by a Wyoming highway patrolman who suffered various facial, head and neck injuries as a result of an automobile collision. The Trial Judge, sitting without a jury, made a separate award to the plaintiff of $25,000 for loss of enjoyment of life. On appeal, the defendant contended that the award for loss of enjoyment of life was improper because it was cumulative to the award for pain (Mariner v Marsden, supra, at 7-8). Although the appeal was from an award after a nonjury trial, the appellate court followed an approach pursuant to which loss of enjoyment of life may either be taken into consideration in arriving at the total award of general damages or may constitute a separate element of damages (Mariner v Marsden, supra, at 12; see also, Downie v United States Lines Co., 359 F2d 344, 347 [3d Cir 1966], cert denied 385 US 897; Lebesco v Southeastern Pa. Transp. Auth., 251 Pa Super 415, 380 A2d 848; cf., Sarauw v Oceanic Nav. Corp., 622 F2d 1168 [3d Cir]).
In the final analysis, the manner in which the loss of enjoyment of life is compensated is clearly a semantical problem. Carefully drafted jury instructions distinguishing pain and suffering and loss of enjoyment of life will prevent the duplication of damages and remove any degree of speculation concerning the amount awarded as to each element of damages. The plaintiff will also be ensured reasonable compensation for his injuries.
B
Turning our attention to the defendants’ remaining *210challenge to the damages awarded to the decedent’s daughter Jessica under the wrongful death cause of action, we do not find the recovery thereunder to be unduly speculative or excessive. Rather, we conclude that the amounts awarded for Jessica’s pecuniary loss are fully supported by the record. On appeal the defendants specifically object to the award of $25,000 representing the cost of Jessica’s future college education and the award of $75,000 to compensate for her loss of prospective inheritance. The damages recoverable in a wrongful death action are limited by statute to fair and just compensation for the "pecuniary injuries” suffered by the survivors of a decedent for whose benefit an action is commenced (EPTL 5-4.3). Such compensable damages are limited to the loss of support, services, voluntary assistance, the prospect of inheritance and medical and funeral expenses incidental to death (Parilis v Feinstein, 49 NY2d 984; Odom v Byrne, 104 AD2d 863, 864; Fell v Presbyterian Hosp., 98 AD2d 624, 625). In determining the value of pecuniary loss, due consideration should be given to a variety of factors such as the decedent’s age, sex, relationship to the person seeking recovery, earning capacity, life expectancy, health and intelligence, as well as the number and circumstances of his or her distributees (see, Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 5-4.3, at 497-498; Fell v Presbyterian Hosp., supra). Furthermore, because "it is often impossible to furnish direct evidence of pecuniary injury, calculation of pecuniary loss is a matter resting squarely within the province of the jury” (Parilis v Feinstein, supra, at 985).
In the present matter, there was proof as to the decedent’s age, academic credentials and accreditation as a teacher coupled with the decedent’s expressed intention to pursue her teaching career when Jessica entered nursery school. Testimony was also adduced from an economic expert who projected the loss of inheritance to be $290,000. As evidenced by its verdict of $75,000, the jury did not fully accept the expert’s calculation as to prospective inheritance. With respect to Jessica’s educational expenses, the plaintiff’s expert projected that the cost of the child’s future college education would require that the sum of $30,320 be immediately set aside. The jury awarded $25,000 which the defendants challenge as unduly speculative and duplicative of the damages awarded for loss of support. Under all of the circumstances, we find the jury’s evaluation of the pecuniary loss suffered by the decedent’s child to be supported by the evidence. Although the *211computation is necessarily speculative to a degree, the evidence adduced provided a reasonable basis for the jury’s award.
IV
In conclusion, the judgment should be affirmed in its entirety.
Brown, Eiber and Sullivan, JJ., concur.
Ordered that the judgment is affirmed, with costs.
. The plaintiff’s expert testified that staging classifies cancers according to how susceptible they are to treatment. The higher the stage the less treatable the cancer. Stage one is identified as involving a primary tumor of less than two centimeters, where no regional lymph nodes are affected and where there is no evidence of metastasis to distant organs. Stage two involves a tumor of less than five centimeters which shows some evidence of regional lymph node metastasis but where there is no evidence of metastasis to any distant organs. Stage three involves a lesion greater than five centimeters in size but which shows no evidence of spread to distant organs. Stage four is a cancer which has metastasized to distant parts of the body such as liver, lungs or bones.
. The Court of Appeals in Rufino v United States (829 F2d 354) had certified to the New York Court of Appeals two questions of law involving whether under New York law the loss of enjoyment of life was separately compensable and whether cognitive awareness was a prerequisite to recovery therefor. This State’s highest court declined to accept certification on the ground that the very questions certified were the subject of an appeal to the Appellate Division, First Department, in McDougald v Garber (135 AD2d 80, lv granted 138 AD2d 268). The Court of Appeals stated its preference to allow those issues to be resolved in the course of the usual appellate process in a pending litigation rather than upon certification of questions from the Federal court (see, Rufino v United States, 69 NY2d 310).
. Flannery v United States (297 SE2d 433 [W Va]) held that under West Virginia law loss of enjoyment of life was an independently compensable injury. In spite of the West Virginia Supreme Court of Appeals interpretation of West Virginia law, the United States Court of Appeals for the Fourth Circuit disallowed an award of damages for loss of enjoyment of life on the basis that such an award to a semicomatose patient violated the Federal law proscription against awarding punitive damages against the United States (28 USC § 2674). Both the Second and Ninth Circuits have rejected the Flannery analysis and, hence, its precedential value is subject to question (Rufino v United States, 829 F2d 354, 362; Shaw v United States, 741 F2d 1202, 1208-1209). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902904/ | Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered February 24, 2010, convicting defendant, after a *461jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 13 years, concurrent with a term of 1 to 3 years for violation of probation, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant’s argument in this regard rests primarily on inferences he seeks to draw from his acquittals on the other counts of the indictment. In performing weight of evidence review, we may consider the jury’s verdict on other counts (see People v Rayam, 94 NY2d 557, 563 n [2000]). Nevertheless, we find that the mixed verdict here does not warrant a different result. “Where a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict” (People v Horne, 97 NY2d 404, 413 [2002]; see also People v Hemmings, 2 NY3d 1, 5 n [2004]).
Defendant’s principal ineffective assistance of counsel claims are unreviewable on direct appeal because they involve counsel’s strategic choices and other matters not reflected in, or not fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Among other things, the record is inconclusive as whether trial counsel actually requested submission of third-degree robbery. Although there were postverdict proceedings having some bearing on the ineffective assistance claims, those proceedings did not shed sufficient light to obviate the need for a CPL 440.10 motion.
To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Defendant was indicted for, among other things, felony murder and first-degree robbery, and there was ample evidence to support those charges. Trial counsel’s strategy was to assert that, after a hypothetical unidentified party committed the more serious charges, defendant engaged in separate criminal conduct against the surviving victim that only constituted second-degree robbery. Although this theory was speculative, counsel’s strategy was successful, in that the jury acquitted defendant of all the charges except second-degree robbery.
Nevertheless, defendant faults his counsel for failing to request a charge of third-degree robbery as a lesser included offense. Assuming, without deciding, for purposes of this appeal, that counsel never requested submission of third-degree robbery, we conclude that defendant has not established that counsel reasonably should have requested that charge, that the *462court would have submitted that charge, or that there is a reasonable probability that the jury would have convicted defendant of that charge.
There was no reasonable view of the evidence that defendant was a latecomer who only committed the limited criminal act he posits, and the jury’s verdict acquitting him of the more serious charges does not, by itself, establish the existence of such a reasonable view (cf. Rayam, 94 NY2d at 561-563). Furthermore, defendant’s theory in support of the lesser offense is essentially that he engaged in different acts from the acts forming the basis for the greater offense, and it is questionable whether this would have warranted submission of the lesser (see People v Nieves, 136 AD2d 250, 258-259 [1st Dept 1988]). We note that submission of second-degree robbeiy, which was already in the indictment, did not present the same issues as submission of a lesser offense.
Accordingly, a reasonably competent attorney could have concluded that a request for third-degree robbery would be futile, and such a request might well have been correctly rejected by the court. Finally, the jury’s verdict convicting defendant of second-degree robbery does not warrant the assumption that, if given the option, the jury would have gone further and convicted defendant of only third-degree robbery. Therefore, the present, unexpanded record fails to satisfy either the reasonableness or prejudice prongs contained in either the state or federal standards.
Defendant was not deprived of his right to effective, conflict-free representation by his attorney’s conduct in relation to defendant’s eve-of-trial request for new counsel. Counsel’s permissible defense of his own performance did not create a conflict (see People v Nelson, 27 AD3d 287 [1st Dept 2006], affd 7 NY3d 883 [2006]; see also United States v Moree, 220 F3d 65, 70-72 [2d Cir 2000]).
We have considered and rejected defendant’s challenge to the court’s suppression ruling, including his related claim of ineffective assistance, and his arguments concerning his adjudication as a second felony offender. We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Saxe, DeGrasse, AbdusSalaam and Feinman, JJ. [Prior Case History: 26 Misc 3d 1220(A), 2010 NY Slip Op 50187(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902905/ | OPINION OF THE COURT
Casey, J.
At issue on this appeal is whether Supreme Court abused its discretion by granting petitioner’s application pursuant to N-PCL 1510 (e), seeking to disinter decedent’s body, without holding a hearing on the issue of decedent’s wishes concerning his burial. We hold that, in the circumstances of this case, it was an abuse of discretion to grant the application without a hearing.
Initially, we note that this matter was before this court on a prior occasion when we held that petitioner, decedent’s wife, had not complied with the relevant statutory provisions for seeking disinterment (Matter of Conroy, 129 AD2d 849). Also, after more than 30 years of marriage, decedent and petitioner were involved in a less than amicable divorce action which had not been completed at the time of decedent’s death. There is also evidence that decedent’s relationship with other family members had deteriorated during the divorce action.
Petitioner contends that inasmuch as all members of decedent’s family want to have his body removed from the Riverside Cemetery in the Town of Coxsaekie, Greene County, where it was buried without their knowledge or consent, Supreme Court did not err in summarily granting her application over the objections of respondent, decedent’s "short-time *214girlfriend”. Respondent, on the other hand, argues that the funeral and burial arrangements which she made following decedent’s death were those expressly requested by decedent after he learned that he was terminally ill. Respondent contends that decedent made his request in statements to her and that decedent also expressed these wishes to respondent’s father and decedent’s attorney. Petitioner counters by arguing that the wishes of decedent’s family members must take precedence over these claims in the absence of a contract entered into by decedent specifying the place for his burial and in the absence of any evidence that decedent was a member of a faith which forbade disinterment. Petitioner also argues that the proof offered by respondent concerning alleged statements made by decedent would be inadmissible under the Dead Man’s Statute (CPLR 4519) and that respondent lacks standing in this proceeding.
We first reject petitioner’s standing argument. As the owner of the cemetery lot in which decedent’s body is buried, respondent plainly had standing under N-PCL 1510 (e). In addition, as discussed below, the wishes of decedent himself are a factor to be considered whenever a court is asked to sanction disinterment; thus, respondent would have standing to represent those wishes since petitioner was unable to secure all of the consents needed to obtain disinterment without court approval (cf., Orlin v Torf, 126 AD2d 252, lv denied 70 NY2d 605 [where all necessary consents were obtained by the party seeking disinterment]).
Next, we reject petitioner’s claim that since all family members want decedent’s body to be disinterred, the application must be granted in the absence of decedent’s contractual arrangement or religious belief to the contrary. The principles upon which petitioner relies as support for this claim are contained in the following paragraph from the Court of Appeals decision in Matter of Currier (Woodlawn Cemetery) (300 NY 162, 164): "The quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned * * * While the disposition of each case is dependent upon its own peculiar facts and circumstances and while no all-inclusive rule is possible, the courts, exercising a 'benevolent discretion’, will be sensitive 'to all those promptings and emotions that men and women hold for sacred in the disposition of their dead’ * * * And looming large among the factors to be weighed are the wishes of the decedent himself If the deceased *215had been a member of a faith which forbade disinterment, if he had agreed with the cemetery corporation that there should be no exhumation whatsoever, if he had elected to be laid in hallowed earth and the request was for reburial in unconsecrated ground, then only compelling considerations would justify disinterment and removal” (emphasis supplied). Petitioner’s argument is based upon the assumption that the last sentence of the quoted paragraph contains an exclusive listing of those circumstances where an application for disinterment, to which no family member objects, should be denied. In our view, however, the list is illustrative only, and even in the absence of those circumstances, the wishes of decedent himself loom large among the factors to be weighed.
Lastly, we reject petitioner’s claim that the Dead Man’s Statute renders inadmissible respondent’s proof of statements made by decedent prior to his death. In our view, CPLR 4519 is not applicable to this proceeding. Petitioner’s application for court approval to remove decedent’s body from the Riverside Cemetery is technically a "civil judicial proceeding” (CPLR 105 [d]), which "shall be prosecuted in the form of an action, except where prosecution in the form of a special proceeding is authorized” (CPLR 103 [b]). Assuming that N-PCL 1510 (e) authorizes prosecution as a special proceeding, it is apparent that many of the formal requirements of the CPLR have been dispensed with. Thus, while CPLR 402 requires that there be a notice of petition and petition, N-PCL 1510 (e) requires only an "application”. CPLR 403 (b) requires service of both the notice of petition and petition on any adverse party, while N-PCL 1510 (e) requires only that notice of the application be given to certain persons. Also, while CPLR 403 (c) requires service "in the same manner as a summons in an action”, N-PCL 1510 (e) provides that notice of the application may be given by ordinary mail. It is also significant that this proceeding does not involve a claim by or against decedent’s estate; nor is any property right or pecuniary interest involved herein. Rather, the only issue is whether there exist "[g]ood and substantial reasons” for the court to exercise its " 'benevolent discretion’ ” to permit petitioner to disturb "[t]he quiet of [decedent’s] grave” (Matter of Currier [Woodlawn Cemetery], supra, at 164). Since decedent’s wishes are an important factor to be considered by the court (supra), it would be counterproductive to exclude evidence of those wishes. For all of these reasons, the formal evidentiary rule embodied in CPLR 4519 is inapplicable. In any event, were we *216to find the Dead Man’s Statute applicable and operative as a bar to respondent’s testimony as to conversations with decedent, the statute would not bar the testimony of respondent’s father (see, Bechard v Eisinger, 105 AD2d 939) or decedent’s attorney (see, Matter of Levinsky, 23 AD2d 25, 30, lv denied 16 NY2d 484).
Accordingly, the order should be reversed and the matter remitted for a prompt hearing in accordance with this decision.
Mahoney, P. J., Weiss, Levine and Mercure, JJ., concur.
Order reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this court’s decision. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902907/ | Order of the Supreme Court, New York County (Martin Evans, J.), entered on September 8, 1987, which, inter alia, dismissed the objections by appellant De Witt Nursing Home to the final accounting of petitioner-respondent Evert M. Olson, is unanimously modified on the law to the extent of vacating the dismissal of appellant’s objections, remanding the matter for a hearing to determine whether petitioner has made a proper accounting of the conservatee’s estate, permitting appellant to be heard in the proceedings, and otherwise affirmed, without costs or disbursements.
On September 16, 1983, petitioner-respondent Evert M. Olson was appointed conservator of the person and property of Ellen Olsson. He subsequently applied to judicially settle his account, resign as conservator and be discharged from all further fiduciary duties. Accordingly, petitioner submitted an accounting of the conservatee’s account covering the period September 16, 1983 to March 12, 1987. In compliance with section 253 of the Debtor and Creditor Law, petitioner notified appellant De Witt Nursing Home, where the conservatee has been a patient-resident since May 1, 1984, of the pendency of the judicial settlement proceeding. Appellant thereafter objected to the final accounting, alleging that there were insufficient funds remaining in conservatee’s estate to pay for services rendered to her by appellant and that petitioner had made certain improper payments. The Supreme Court, however, dismissed appellant’s objections and granted petitioner’s application to the extent of appointing a guardian ad litem for *226the protection of the conservatee’s interests. The nursing home has appealed.
Section 77.29 of the Mental Hygiene Law requires a conservator to make and file an annual inventory and account. While the record is unclear as to whether petitioner filed such an annual accounting (appellant claims that he did not), he has now applied for a final settlement pursuant to Mental Hygiene Law § 77.31. In that connection, section 77.01 (2) of the Mental Hygiene Law provides that "[i]f the conservatee is a patient in a hospital or school, the officer in charge of such hospital or school * * * shall have the right to be heard in all phases of the proceedings.” Public Health Law § 2801 includes a nursing home within the definition of a "hospital”. In addition, section 77.31 (d) of the Mental Hygiene Law mandates that whenever the conservatee is a patient in a hospital or school, the officer in charge of such institution be served with a copy of the final accounting (see, Matter of Silberman, 103 AD2d 729, a case involving a motion by a creditor-nursing home to vacate a resettled order judicially settling a final account by the conservator, wherein this court held that "due notice to all creditors should be given”). Certainly, the right to notice is meaningless unless it is accompanied by the right to intervene in the proceeding and file objections to the accounting. The Supreme Court, therefore, should have held in abeyance a decision regarding the validity of appellant’s objections pending a hearing on the issue of whether petitioner has made a proper accounting of the conservatee’s estate and should have permitted appellant to be heard in the proceedings. Concur—Murphy, P. J., Sandler, Carro, Milonas and Rosenberger, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902910/ | Order of the Supreme Court, New York County (Helen E. Freedman, J.), entered on Miay 6, 1987, which, inter alia, granted, without prejudice to plaintiffs’ rights under CPLR 205, defendants’ motion to dismiss the action based upon the pendency of another action in New Jersey, is modified on the law, the facts and in the exercise of discretion to the extent of denying defendants’ motion to dismiss and granting plaintiffs’ cross motion to stay the New York action only as to those defendants named in the New Jersey action, and otherwise affirmed, without costs or disbursements.
This is a medical malpractice case arising out of surgery performed on plaintiff Frank Hollendonner at defendant Presbyterian Hospital in New York City by defendant Dr. Hugo Kiem, which procedure allegedly resulted in neurological damage to plaintiff. In December of 1984, plaintiff Frank Hollendonner and his wife, Lamina D. Hollendonner, commenced the instant action in the State of New York. The following year, plaintiffs instituted a second lawsuit in the State of New Jersey, of which they are residents, citing 3 of the same 9 defendants as those named in the New York State case (Presbyterian Hospital, Dr. Hugo Kiem and Dr. Robin Motz). Defendants in the New York action thereafter moved to dismiss based upon the pendency of the New Jersey action. Plaintiffs opposed the motion and cross-moved to stay the New York matter. The Supreme Court granted a stay pending resolution of certain disputed jurisdictional issues in the New Jersey case. In an order dated March 25, 1987, Superior Court Judge Kevin O’Halloran of New Jersey denied the motion by defendant Dr. Motz to dismiss the New Jersey action. Judge O’Halloran also denied Presbyterian Hospital’s motion to dismiss for lack of personal jurisdiction. Subsequently, by order dated March 27, the Supreme Court dismissed the New York action without prejudice to renewal within one year *231should the New Jersey claim fail. The court then recalled that ruling by order entered on May 1, 1987 and, instead, dismissed the New York action without prejudice to plaintiffs’ rights under CPLR 205. Plaintiffs now appeal, seeking to reinstate the stay of the New York matter, or in the alternative, for an order tolling the running of the Statute of Limitations such that, in the event that the New York action is ultimately reinstated, plaintiffs will be in the same position with respect to the Statute of Limitations as they were when the case was initially brought in New York.
At the outset, it should be noted that 6 of the 9 defendants named in the New York action are not parties to the New Jersey action. While CPLR 2201 permits the granting of a stay "in a proper case, upon such terms as may be just”, there is no basis to stay the matter against those defendants who were not sued in New Jersey. In that regard, the decision in the New Jersey action will certainly not determine all of the questions in the New York action; absent is the identity of parties, causes of action and judgment sought which is the prerequisite for a stay as set forth in the relevant legal authority (see, Hope’s Windows v Albro Metal Prods. Corp., 93 AD2d 711, appeal dismissed 59 NY2d 968; Medical Malpractice Ins. Assn. v Methodist Hosp., 64 AD2d 558; Pierre Assocs. v Citizens Cas. Co., 32 AD2d 495). This court is neither advising plaintiffs as to the proper procedure to follow in the present matter nor mandating that they prosecute their claims in both jurisdictions simultaneously. It is plaintiffs who have elected to sue six of the defendants in New York only, and, having done so, should proceed with the action against them. As for the three defendants who were named in both lawsuits, a stay of the action against them pending resolution of the New Jersey matter would appear to be more appropriate than dismissal without prejudice. Concur—Sandler, J. P., Carro and Milonas, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902912/ | — Order, Supreme Court, New York County (Martin Evans, J.), entered on or about October 21, 1986, affirmed, without costs and without disbursements. Concur — Sandler, J. P., Carro and Milonas, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902913/ | Asch, J.,
dissents in part in a memorandum as follows: I agree with the Supreme Court’s grant of summary judgment to plaintiff on her causes of action. I would, however, also modify that court’s order to grant summary judgment dismissing defendant’s counterclaim.
Plaintiff commenced this action for assault and battery and unlawful imprisonment by defendant upon her in his apartment on February 13, 1985. Defendant was tried in Criminal Court, New York County, and convicted, after trial by jury, of assault in the third degree and unlawful imprisonment in the second degree, receiving a sentence of a conditional discharge and a $1,000 fine. This conviction was affirmed upon appeal, without opinion.
The acts for which defendant was convicted in Criminal Court are those that underlie this present action by her. Defendant counterclaimed for assault by the plaintiff based on *233the same events on February 13, 1985 which led to his conviction.
The Supreme Court granted plaintiff summary judgment on her causes of action but denied her motion for summary judgment as to defendant’s counterclaim. This, in my opinion, was erroneous.
The Court of Appeals in 1969, in the watershed case of Schwartz v Public Adm’r of County of Bronx (24 NY2d 65, 71), enunciated the present state of the law: “New York Law has now reached the point where there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.”
Both requirements were met here. Defendant vigorously contested the charges, both class A misdemeanors, in Criminal Court, before a jury, calling employees at his apartment building, as well as character witnesses, on his behalf. The assault in the third degree and unlawful imprisonment in the second degree are both class A misdemeanors punishable by up to one year’s incarceration. They are not the “minor” infractions argued by defendant (cf, Gilberg v Barbieri, 53 NY2d 285, 292, where the Court of Appeals refused conclusive effect to a conviction for harassment, a violation, where there was no right to a jury trial and the prior action was only “nominally a criminal trial”).
Defendant further contends that he never raised the defense of self-defense at his criminal trial and, therefore, the issue was not determined in the prior proceeding. However, an issue need not be raised in the prior proceeding to be “necessarily decided” pursuant to the Schwartz v Public Adm’r rule. Thus, the Court of Appeals has found that in an action for separation, the validity of the marriage was necessarily decided and a subsequent action for annulment barred (Statter v Statter, 2 NY2d 668, 672). The Fourth Department in 1980 held that an action for legal malpractice was barred by an earlier judgment awarding the defendant lawyers compensation for services rendered (Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143). Judge, then Justice, Simons wrote for the court that plaintiff “was not required to plead malpractice as a counterclaim in the prior action but whether or not it did so is irrelevant. It could have raised the issue as a defense and it was required to do so or be precluded on it” (supra, at 146).
*234Defendant likewise could have pleaded the affirmative defense of justification at his criminal trial. He chose not to do so. His subsequent conviction for assault precludes him from now contending that plaintiff, in fact, assaulted him and he simply acted in self-defense. The jury verdict of guilty and the subsequent judgment of conviction on the assault charge against defendant necessarily implied that there was no justification or legitimate cause for his actions. As such, he is now barred by the doctrine of collateral estoppel from asserting his counterclaim (see, Siegel, NY Prac § 464, at 614). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902917/ | Upon remittitur from the Court of Appeals, judgment, Supreme Court, Bronx County (John Reilly, J.), rendered on December 21, 1982, unanimously affirmed. No opinion. Concur — Murphy, P. J., Carro, Milonas, Rosenberger and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902918/ | 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/5902919/ | — Order, Supreme Court, Bronx County (Barry Salman, J.), entered on January 7, 1987, affirmed, without costs and without disbursements. Concur — Sandler, J. P., Sullivan and Carro, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902920/ | Milonas and Smith, JJ.,
dissent in a memorandum by Smith, J., as follows: I would reverse and remand for a hearing to determine whether actual notice was received by the city. Plaintiff was allegedly injured on or about May 21, 1985 when a building owned by the city collapsed. At the time, work was allegedly being done on the premises by Cross Bay Demolition Company pursuant to a contract with the city.
In his motion to file a late notice of claim, a motion made in August 1986, plaintiff alleges that the city had actual notice of the facts constituting the claim because of (1) the presence of city inspectors on the jobsite and (2) the existence of an accident report.
In determining whether to permit a late notice of claim, a court must consider the issue of whether the city acquired actual knowledge of the facts constituting the claim within the statutory period (General Municipal Law § 50-e [5]; Matter of Gerzel v City of New York, 117 AD2d 549 [1st Dept 1986]; King v City of New York, 88 AD2d 891 [1st Dept 1982]). Despite this requirement and plaintiff’s contention that the city acquired actual notice at or about the time of the accident, the motion court failed to consider this issue. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902922/ | Order, Supreme Court, New York County (Dorothy Cropper, J.), entered May 8, 1985, granting defendants’ motion to suppress a gun, is unanimously reversed, on the law, and the motion to suppress denied.
The facts, as adduced from the testimony of the sole witness at the hearing, Detective Frank Aiello, are as follows: At approximately 8:30 p.m. on September 15, 1984, defendants were in a car proceeding north on Eighth Avenue near 113th Street. Going in the opposite direction was an unmarked anticrime patrol vehicle driven by Detective Aiello, who was accompanied by Police Officer Bartley Porzio and Sergeant Robert Broughton. As defendants’ vehicle passed, Detective Aiello observed that its rear license plate was dangling.
Because an improperly affixed license plate may signify that a vehicle has been stolen and its plates hastily replaced to avoid detection, Detective Aiello drove alongside defendants’ vehicle, which had stopped for a traffic light, and directed the driver, defendant Faustin, to pull over to the curb. As Detective Aiello and Police Officer Porzio approached the vehicle, the detective observed Faustin reach over the front seat as if placing an object in its rear. Using his flashlight to illuminate the area of Faustin’s reach, Detective Aiello observed a shiny object, which appeared to be a white metal revolver, on the floor. Defendant Faustin and his passenger, codefendant Desir, were removed from the vehicle, and the object, a pistol, was seized.
Defendants were arrested and on October 23, 1984, indictment No. 6911/84, charging them with criminal possession of a weapon in the third degree, was filed.
In granting defendants’ motion to suppress the weapon, the *237hearing Judge, who first made findings of fact in accordance with Detective Aiello’s testimony, ruled, as a matter of law, that the dangling license plate failed to provide a sufficient predicate to support the stop of the vehicle. On the basis of our holding in People v Vasquez (106 AD2d 327, affd 66 NY2d 968, cert denied 475 US 1109), we reverse.
As here, Vasquez (supra) involved a vehicle which aroused the suspicions of police officers because it had a dangling license plate, there affixed by a string. At the hearing on defendant’s motion to suppress a gun observed when the police made inquiry, the officer in Vasquez testified that stolen cars frequently bear plates affixed in an unusual fashion. In affirming the lower court’s denial of the motion to suppress, this court held that the police were justified in stopping the vehicle on the basis of the dangling-plate predicate, which constitutes a violation of Vehicle and Traffic Law § 402. We find the reasoning and result in Vasquez controlling in the similar circumstances presented here.
First, it is well established that the police may lawfully stop automobiles for violations of the Vehicle and Traffic Law. (See, e.g., People v David L., 56 NY2d 698, cert denied 459 US 866). In this context, we reject the hearing court’s conclusion that "any traffic infraction for which there was no summons issued would constitute only a pretext [stop]”. While the failure to issue a summons may be considered, together with all other relevant factors, in the assessment of credibility, there exists no blanket rule such as enunciated by the lower court. Moreover, the court expressly adopted the version of events testified to by Detective Aiello.
Having lawfully stopped defendants’ automobile, Detective Aiello acted properly in using his flashlight to view the area where he had seen defendant Faustin reach with his hands, for "shining a flashlight into the interior of [a vehicle] to illuminate what would have been in plain view in daylight [does] not involve an unreasonable intrusion * * * It is only where the stop itself or the ensuing detention is unwarranted that the use of a flashlight constitutes an unreasonable search.” (People v Robinson, 115 AD2d 411, 413.)
Accordingly, the gun seized by Detective Aiello was the product of legitimate police activity, and the motion to suppress should have been denied. Concur — Murphy, P. J., Sullivan, Carro, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902970/ | Judgments, Supreme Court, New York County (James J. Leff, J.), rendered October 20, 1986, convicting defendants of conspiracy in the fourth degree and sentencing them to indeterminate terms of imprisonment of from 1 to 4 years, affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).
The proof adequately demonstrated that from December 1978 to July 1980 defendants Leisner and Marx hired Morris Lender and Charles Lambert to move a gang of drug addicts, pimps, prostitutes, derelicts and thieves into apartment buildings owned by them in order to coerce the tenants into abandoning their apartments. If the tenants were not immediately frightened into moving by the mere presence of such miscreants, who openly used and sold drugs in the building and ran "shooting galleries” and prostitution rings, the gang was ordered to break into their apartments to steal or vandalize property. By July 1980, more than 100 tenants, the vast majority, had been driven from their homes. Although acquitted of attempted grand larceny (one count) and attempted coercion (one count), involving the same tenant as victim, both defendants were convicted of conspiracy to commit grand larceny in the first degree by extortion. The jury was unable to reach a verdict on the remaining substantive counts.*
*274Of the many issues raised only two warrant discussion—the court’s failure to charge the jury that the People must establish the commission of an overt act within five years of the indictment in order for it to find defendants guilty of conspiracy, and the refusal to charge on the possibility of multiple conspiracies. Defendants had submitted a written request that in order to convict, the jury "must find that the single overall conspiracy alleged * * * existed, and that each defendant joined that conspiracy.”
We discuss the latter issue first. As defendants note, courts have held that if a reasonable view of the evidence exists to support a finding of multiple conspiracies, whether single or multiple conspiracies have been proven is generally a question of fact. (See, United States v Alessi, 638 F2d 466; United States v Murray, 618 F2d 892, 902.) Absent an evidentiary basis for a finding of multiple conspiracies, however, a court is not required to give the multiple conspiracy charge. (See, United States v Martino, 664 F2d 860, 875, cert denied sub nom. Miller v United States, 458 US 1110; United States v Ocampo, 650 F2d 421, 429.)
Here, the evidence established defendants’ joint economic involvement throughout the conspiracy, and a careful coordination of all their activities to advance their joint goals. A finding of multiple conspiracies would thus have required an irrational segregation of the evidence. In any event, even if the evidence supported a finding of multiple conspiracies, the court’s refusal to give the requested charge does not constitute reversible error. Only in instances where the variance between the pleading of a single conspiracy and the hypothetically assumed proof of multiple conspiracies "substantially prejudiced” the defendant’s rights is reversal warranted. (See, Berger v United States, 295 US 78, 81; United States v Miley, 513 F2d 1191, cert denied sub nom. Vavarigos v United States, 423 US 842.)
Traditional harmless error analysis requires an examination of the conspiracy in which a defendant was proven to have been clearly involved, so as to determine whether the jury’s consideration of that crime was tainted by a prejudicial spillover of inflammatory evidence related to separate conspiracies with which he was not involved. Inevitably, the likelihood of prejudice becomes greater as the number of defendants and *275discrete conspiracies, many of which are proven by evidence of a substantially different strength or quality, increases. (See, United States v Bertolotti, 529 F2d 149, 156-157; United States v Miley, supra, 513 F2d, at 1209.)
Under these standards, defendants here were not substantially prejudiced, even assuming that multiple conspiracies had been proven, although only one was alleged. As even defendants concede, they could have been tried jointly on a charge of conspiracy to vacate their jointly owned buildings. Since these buildings constituted 9 of the 16 buildings involved in the underlying charges, most of the evidence introduced at trial related to the conspiracy in which they were both involved. (Contrast, United States v Cambindo Valencia, 609 F2d 603, 626-627, cert denied sub nom. Prado v United States, 446 US 940, where the defendant in a multiple conspiracy case was overwhelmed with a mass of inflammatory testimony relating only to other defendants involved in other conspiracies.) Moreover, the evidence of the Lender-Lambert gang’s criminal activities in defendants’ jointly owned buildings was substantially identical to their criminal activities in defendants’ separately owned buildings. (See, United States v Miley, supra, 513 F2d, at 1209; contrast, United States v Bertolotti, supra, 529 F2d, at 158.)
In addition, much of the evidence of defendants’ activities in the separately owned buildings would also have been admissible in a trial involving only the joint buildings. At such a trial, for example, a critical issue would have been, as it was here, whether defendants knew that Lender and Lambert were vacating the jointly owned buildings through criminally coercive methods. Under People v Molineux (168 NY 264), defendants’ knowledge that, during the same time period, criminal activities occurred in the separately owned buildings would have been admissible to prove their knowledge that the same methods were being used in the jointly owned buildings. Although we believe that the evidence was clearly sufficient to establish that defendants were involved in the single conspiracy alleged in the indictment, even if, arguendo, we accept the existence of multiple conspiracies, this case involved only two defendants, both of whom joined 1 of, at most, 3 separate conspiracies, all of which were proven by substantially similar evidence.
With respect to the other issue, defendants submitted a written request that the court charge that in order to find them guilty of conspiracy the People must establish the commission of an overt act after December 14, 1979. Such proof *276would establish that the prosecution had been timely under the applicable Statute of Limitations, that is, within five years after the completion of the conspiracy. In that same written submission, defendants also requested a similar Statute of Limitations charge for each substantive count, so as to require a finding that these crimes had been committed after December 14, 1979.
Although the trial court correctly charged that the People must prove, as an element of the crime, the commission of one overt act in furtherance of the conspiracy, it did not mention the Statute of Limitations in this context. Defendants argue that such failure constitutes error mandating reversal. Upon review of the record, we find that defendants effectively withdrew their request and thus waived any objection to the court’s failure so to charge.
After reviewing defendants’ written requests, the Trial Judge endorsed on most of them either "covered by charge” or "refused”, and made his annotated copy a court exhibit. He did not, however, so mark defendants’ Statute of Limitations request; instead, he underlined the relevant date constituting the limitation deadline. Thus, at the outset, the Trial Judge did not reject defendants’ request for the limitation instruction, but was apparently relying on the oral charge conference to clarify whether defendants actually wanted their request to cover each count.
During the oral charge conferences before and after summations, neither defense counsel ever mentioned his overt act Statute of Limitations charge. Nor did they request a Statute of Limitations charge for each substantive count. Rather, when the issue arose, counsel focused only on the two substantive counts involving Ion Burta as the victim, arguing that these counts must be dismissed since the crimes occurred prior to December 14, 1979. Defendants’ concentration on the Burta counts was understandable, since the West 53rd Street building in which Burta lived was sold on December 19th, only five days after the Statute of Limitations deadline. Although Burta lived in the building for two more months, a sharp factual dispute existed as to whether Burta was subjected to any coercion after he signed a surrender and release on December 6, 1979. After a lengthy argument, the Trial Judge determined that with respect to the Burta counts a factual issue was raised as to the Statute of Limitations and he charged the jury accordingly.
Much later in the charge conference the following colloquy occurred between Marx’s counsel and the Judge:
*277"[counsel]: * * * Judge I have an additional charge today that I made about 1:30 this morning and what it simply is, because I take it you’re going to charge on the statute of limitations as a factual matter, aren’t you?
"the court: With respect—it applies apparently, only to the testimony on Burta.
"[counsel]: Well, there is another aspect, judge. I think if they were to find that there is not an overall conspiracy * * * 23rd Street and 30th Street would both be barred, time barred. That’s the only thing that brings it within the time * * *
"If the jury were to find there was not a single conspiracy * * * point out to them, 23rd Street becomes an island of itself and so does 30th Street. They are barred from the statute of limitations.”
In this colloquy Marx’s counsel did not request that the jury be given a Statute of Limitations instruction on the single conspiracy charged in the indictment, as defendants now argue. Instead, he continued to press his multiple conspiracy argument in another form. Moreover, by claiming that only the allegedly separate conspiracies involving 23rd Street and 30th Street were time barred, he, in effect, conceded that the Statute of Limitations was not a viable defense to the indictment’s charge of a single conspiracy, which, as the People’s evidence showed, had extended past the limitation deadline. This is further supported by the ensuing colloquy:
"the court: If you have a continuing conspiracy then those were overt acts that were committed and, the conspiracy continues so that the overt act isn’t time barred from being considered as part of the conspiracy.
"[counsel]: I agree, your Honor, on the overall conspiracy theory.”
Apparently, after the lengthy charge conference, the Trial Judge thought defendants had narrowed the scope of their written submission and had requested a Statute of Limitations charge only on the Burta counts, which he had agreed to give. Defense counsel never alerted the Judge that as to the conspiracy count they still sought the Statute of Limitations charge which had been included in their written request. Nor did they mention anything about the Judge’s omission of this instruction after he charged the jury. Rather, the postcharge colloquy makes it even clearer that they had withdrawn their request for such an instruction. Since the Judge had not marked "refused” on defendants’ requests, had defense coun*278sel at this point drawn his attention to it, the Judge presumably would have given the instruction. When they asked to review their written requests, the Judge was at first reluctant, since he had already marked on their written submission the requests, he had refused, which, as already noted, did not include the overt act Statute of Limitations instruction. It was in this context that the Judge stated that "to the extent” he did not follow defendants’ written requests "they are a part of your exceptions”. Defense counsel nevertheless insisted on reviewing their exceptions seriatim. Although they then presented 21 exceptions to the charge as given, the discussion of which consumes 20 pages of the record, they never again mentioned the Statute of Limitations request. Thus, the Judge could reasonably have concluded that defendants had limited their request to the two Burta counts. By never informing the Judge during the trial that they still desired the conspiracy limitation instruction, they waived any objection to the Judge’s failure to give this instruction. (See, People v Lipton, 54 NY2d 340, 351.)
Indeed, People v Le Mieux (51 NY2d 981), which also dealt with the submission of written requests, provides an illustrative contrast. In Le Mieux, the court noted that defense counsel’s failure at a very brief postcharge colloquy to mention a particular written request for the instruction at issue "without more * * * hardly demonstrated a clear intent to waive a position already preserved with respect to a request on which the verdict could very well have turned.” (Supra, at 983.) Here, the record contains more than defendants’ failure to raise the conspiracy limitation request specifically at the postcharge colloquy as proof of abandonment. They effectively expressed satisfaction with the Judge’s interpretation of their request after extensive colloquy and his ultimate decision to charge the Statute of Limitations only on the Burta counts. Their failure to request the conspiracy limitation instruction at that juncture must be interpreted as a conscious abandonment, rather than oversight.
Moreover, neither the majority nor the dissenters in Le Mieux (supra, at 983) could discern any rational strategic reason in a perjury case for a lawyer to abandon a corroboration instruction "on which the verdict could very well have turned.” Here, defendants’ withdrawal of their request is entirely understandable, since numerous overt acts within the limitations period were proven by documents and testimony which went unchallenged. Defendants’ trial strategy was based, not on disputing the overwhelming array of evidence *279that Lender and Lambert had terrorized their tenants, but on vigorously disputing that either defendant was aware of their agents’ criminal activity. Such a strategy dictated that the jury’s attention not be drawn to the long litany of overt acts which might divert the jurors from a consideration of defendants’ claim of lack of scienter.
Indeed, Marx’s counsel was upset at the court’s reading of the overt acts to the jury during its instruction on the conspiracy count, describing it as "almost like another summation for the People”. Had a limitation instruction on the conspiracy count been given, requiring the jurors to focus on the date of each specific act, they could have requested a reading of the testimony as to the list of overt acts which defense counsel felt was too prejudicial to present even by a reading of the indictment. Furthermore, their abandonment of the conspiracy limitation charge could have no impact on the result. Proof of a timely overt act is required in a conspiracy prosecution "simply to manifest” that the conspiracy has advanced beyond "a project still resting solely in the minds of the conspirators” and is still " 'at work’ ” within the applicable limitation period. (Yates v United States, 354 US 298, 334.) After weighing the extreme unlikelihood of an acquittal of the conspiracy count based on a Statute of Limitations defense against the risk of what they believed would be substantial prejudice from the jury’s focus on the overt acts, defendants apparently decided to forego their Statute of Limitations request on the conspiracy count. Having pursued such a strategy, defendants cannot now complain that they were prejudiced by the trial court’s failure to give the instruction.
Since the record is replete with evidence of numerous overt acts committed after December 14, 1979, there is no need for this court to exercise its interest of justice jurisdiction to reach the issue of the failure to charge the Statute of Limitations in connection with the conspiracy charge. The People, for instance, proved by documentary evidence that defendants purchased the jointly owned buildings at Ninth Avenue and 48th Street on January 4, 1980, which was within the limitation period. Furthermore, Marx specifically admitted in his testimony that he and Leisner were the principals of Hodraw Realty and therefore the owners of said premises. Thus, proof of even one overt act committed in vacating these buildings would clearly meet the People’s burden in this regard.
In fact, though, the People proved numerous overt acts. For instance, on the same date that they purchased the buildings, defendants registered Morris Lender as the managing agent. *280Moreover, in his testimony Marx conceded that Lender had been installed in these buildings and was managing them for defendants. Defendants’ registration of Lender as their managing agent was also an act "in furtherance of the conspiracy”, since they thus gave him access to the buildings and clothed him with authority as their legal representative to pursue his tactics. By making Lender the person visibly responsible for conditions at the buildings, moreover, defendants hoped to shield themselves from responsibility for his actions. The commission of this overt act within the limitation period was not disputed by defendants.
Additionally, after defendants purchased Ninth Avenue/ 48th Street and installed Lender as their agent, Lambert moved his gang of thugs to the building. The tenants and a local tenant organizer soon noticed the arrival of new drug addict and prostitute tenants shortly afterwards. The usual pattern of harassment then commenced. The tenants confronted gang members loitering in the hallways and congregating on the roof, and found empty glassine envelopes, used hypodermic needles and garbage scattered throughout the building. Eventually the front door lock was broken and the door glass shattered, with the inevitable ensuing pattern of robberies and break-ins. Consistent with their strategy, defendants did not dispute that thugs were installed in these buildings, but, instead, consistently concentrated their efforts on proving their lack of knowledge. Thus, substantially undisputed evidence proved that in furtherance of the conspiracy overt acts were committed within the limitation period.
Thus, the convictions should be affirmed. Concur—Sullivan, J. P., Ross and Kassal, JJ.
The jury’s inability to reach a unanimous verdict on the substantive counts was almost certainly based on the different standards for finding *274accomplice, as opposed to conspiratorial, liability under People v McGee (49 NY2d 48), rather than on any failure of proof regarding the coercion of these tenants. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/194476/ | January 5, 1993
United States Court of Appeals
For the First Circuit
No. 92-1558
DAMARIS RIVERA-RUIZ,
Plaintiff, Appellant,
v.
LEONARDO GONZALEZ-RIVERA, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges,
and Skinner,* District Judge.
Rafael F. Castro-Lang for appellant.
Vannessa Ramirez, Assistant Solicitor General, Department of
Justice, with whom Anabelle Rodriguez-Rodriguez, Solicitor General,
was on brief for appellees.
*Of the District of Massachusetts, sitting by designation.
Stahl, Circuit Judge. Appellant Damaris Rivera-
Ruiz ("Rivera") sued appellees pursuant to 42 U.S.C. 1983
and 1985 for alleged violations of her constitutional rights.
Specifically, the complaint alleged that appellees demoted
and transferred Rivera because of her political affiliation.
The district court granted summary judgment to appellees
because Rivera failed to "meet the standard for alleging
constitutional injury as set forth in Agosto-Feliciano v.
Aponte-Roque, 889 F.2d 1209 (1st Cir. 1989)." Rivera-Ruiz v.
Leonardo Gonzalez-Rivera, No. 87-1592, slip. op. at 2 (D.P.R.
April 1, 1992). Because we disagree with the district
court's view of Rivera's showing, we reverse the district
court's judgment and remand the case for further proceedings.
SUMMARY JUDGMENT
"Summary judgment is only appropriate when . . .
`there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of
law.'" Hoffman v. Reali, 973 F.2d 980, 984 (1st Cir. 1992)
(quoting Fed. R. Civ. P. 56(c)). Summary judgments receive
plenary review, in which we read the record and indulge all
inferences in the light most favorable to the nonmoving
party. E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907
F.2d 1274, 1277 (1st Cir. 1990).
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2
BACKGROUND
The facts in the light most favorable to Rivera are
as follows. Rivera, a member of the New Progressive Party
("NPP"), worked at an agency of Puerto Rico's government
Corporacion de Fomento Recreativo since 1971. In that
organization, she held the career position of Executive
Officer IV since February 1, 1984.
In December 1986, appellees, members of the Popular
Democratic Party ("PDP") took Rivera's job duties away from
her and reassigned them to a member of the PDP. On the 22nd
of that month, appellees also reduced her monthly salary from
$1,131 to $998. On May 30, 1987, appellees demoted Rivera to
Executive Secretary I, which carries a monthly salary of
$995.
As a result of these actions, Rivera became
severely depressed, and on March 27, 1987, she was placed on
rest status at the State Insurance Fund. Rivera remained on
rest status until the State Insurance Fund declared itself
"without jurisdiction because [Rivera's] emotional condition
[is] due to political discrimination." Subsequently, Rivera
received private psychiatric care.
After receiving psychiatric care, Rivera reported
back to work, and appellees sent her to the agency's press
office where she was assigned minimal duties by a former
subordinate.
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3
In September 1990, appellees transferred Rivera to
a division that did not require her skills as an Executive
Secretary. Moreover, at that division, Rivera had no desk,
typewriter, or office. Rivera never received a hearing on
any of these demotions or transfers.
LEGAL ANALYSIS
I. Due Process
The Due Process Clause of the Fourteenth Amendment
guarantees public employees with a property interest in
continued employment the right to a pre-termination hearing.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985). State law determines whether an employee has such an
interest. Bishop v. Wood, 426 U.S. 341, 344 (1976). Under
Puerto Rico law, a career position is a constitutionally
protected property interest. Kaufmann v. Puerto Rico Tel.
Co., 841 F.2d 1169, 1173 (1st Cir. 1988). However, that
property right is void if the employee acquired the career
position through a violation of the Puerto Rico Personnel Act
or agency regulations promulgated under that Act. Id.
No one disputes that Rivera held a career position.
However, appellees contend that her ascension to the
Executive Officer IV position entailed two violations of the
agency regulations. First, they argue that in October 1979,
Rivera was erroneously reclassified from Secretary V to
Executive Secretary II. Specifically, they state that she
-4-
4
did not perform functions similar to those performed in the
Executive Secretary I position for one year as required by
the agency regulations.
In response, Rivera has offered an affidavit from
an Interagency Coordinator of Human Resources for the
Municipal Government of San Juan stating that the
reclassification was appropriate. She also argues that she
worked for more than one year as an Executive Secretary III,
a position two levels higher than Executive Secretary I, and
that she therefore has satisfied the required one year of
experience similar to that of Executive Secretary I.
Second, appellees contend that Rivera's promotion
from Executive Secretary II to Executive Officer IV was void
because she did not have the minimal qualifications for that
position. Specifically, they assert that she did not meet
the requirement of one year of experience performing
functions similar to those of an Executive Officer III.
Rivera contends, however, that she did meet that requirement,
and the record is unclear on this issue. Thus, there are
genuine issues of material fact with respect to whether
Rivera's ascension to Executive Officer IV violated the
personnel regulations, and the district court should not have
granted appellees summary judgment on Rivera's due process
claim.
-5-
5
II. First Amendment
The district court concluded that Rivera's First
Amendment claim fails for two reasons. First, it stated that
even if Rivera could show that political affiliation was a
"motivating factor" in appellees' actions, appellees can show
that they would have demoted her regardless of her political
affiliation. Rivera-Ruiz, No. 87-1592, slip. op. at 12.
On appeal, appellees concede that Rivera carried
her initial burden of a prima facie showing that appellees'
conduct was politically motivated. See Kaufmann, 841 F.2d at
1172. She alleged that: (1) she support the NPP, and that
appellees were PDP supporters; (2) appellees gave the duties
of her former position to a specific PDP supporter; and (3)
two other employees in similar situations who were PDP
supporters had not been demoted.
Appellees argue, however, that they then met their
burden of production by offering a legitimate reason for
Rivera's demotion: she held the Executive Officer IV
position in violation of the personnel regulations. However,
as discussed above, it is unclear whether this justification
is supported by the record. Indeed, genuine issues of
material fact exist with respect to Rivera's qualifications
to hold this position.
The second reason that the district court rejected
Rivera's First Amendment claim was that Rivera failed to meet
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6
the standard set out in Agosto-Feliciano v. Aponte-Roque, 889
F.2d 1209 (1st Cir. 1989) (holding that actions short of
dismissal may violate employee's First Amendment rights, but
placing restrictions on when they constitute such violation).
We disagree. Simply put, we believe that Rivera's
allegations, which have not been demonstrated to be false,
could provide a sufficient evidentiary basis for a reasonable
factfinder to determine, by clear and convincing evidence,
that Rivera's current position is "unreasonably inferior to
the norm," as that term is defined in Agosto-Feliciano. See
id at 1218-20; see also Rodriguez-Pinto v. Tirado-Delgado,
No. 92-1648, slip op. at 9-13 (1st Cir. Dec. , 1992).
Moreover, we are of the opinion that Rivera's allegations
also are of such a nature that a reasonable factfinder could
conclude by a preponderance of the evidence that appellees'
actions were motivated by discrimination on the basis of
political affiliation. See Agosto-Feliciano, 889 F.2d at
1220; see also Rodriguez-Pinto, slip op. at 11-13.
Accordingly, we find that the district court should not have
granted defendants summary judgment on Rivera's First
Amendment claim.1
1. There is some question as to the continuing vitality of
Agosto-Feliciano in light of the Supreme Court's ruling in
Rutan v. Republican Party of Illinois, 110 S. Ct. 2729
(1990). See Rodriguez-Pinto, slip op. at 18 (Torruella, J.
concurring). Because we conclude, however, that there exist
sufficient genuine and material factual disputes to warrant a
trial even under the arguably more stringent standard set
-7-
7
III. Qualified Immunity
Appellees' suggest that as government officials,
they are entitled to qualified immunity. The qualified
immunity defense does not rescue appellees in this case.
Qualified immunity is an affirmative defense for
government officials sued for damages. Domegan v. Fair, 859
F.2d 1059, 1063 (1st Cir. 1988). However, government
officials are not entitled to this defense if they violate
clearly established rights of which a reasonable government
official would have known. Harlow v. Fitzgerald, 457 U.S.
800, 818-19 (1982).
Because some portion of appellees' conduct
allegedly occurred after Agosto-Feliciano and Rutan were
decided, said conduct, if deemed unconstitutional, would have
violated clearly established rights about which appellees
should have known. Thus, appellees are not entitled to
qualified immunity with respect to those actions.2
forth in Agosto-Feliciano, we do not reach this issue.
2. Of course, appellees remain entitled to qualified
immunity with respect to any conduct that occurred prior to
the Agosto-Feliciano and Rutan decisions. See Rodriguez-
Pinto, slip. op., at 7 ("prior to our decision in Agosto-
Feliciano and the Supreme Court's decision in Rutan v.
Republican Party of Illinois, 110 S. Ct. 2729 (1990), it was
not clearly established that the constitutional prohibition
against politically motivated firings applied to other
personnel actions, such as promotions, transfers, demotions,
and hirings") (citations omitted) (emphasis original).
-8-
8
CONCLUSION
Because genuine issues of material fact exist with
respect to Rivera's claims against appellees, we reverse the
summary judgment, and remand the case for further proceedings
consistent with this opinion.
Reversed and remanded.
-9-
9 | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/6495511/ | Filed 6/27/22 P. v. Randall CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080614
Plaintiff and Respondent,
(Super. Ct. No. F19905858)
v.
JAMES LEE RANDALL, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Robert Gezi and Galen
N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.
In this appeal, defendant James Lee Randall challenges the use of expert testimony
explaining intimate partner battering syndrome and the cycle of violence in his trial.
Defendant believes the use of this testimony violated his constitutional right to due
process because it lowered the prosecution’s burden of proof on the question of whether
he committed domestic violence. Defendant also contends the trial court erred when it
failed to provide a jury instruction, sua sponte, limiting the use of this testimony. Our
review of the record leads us to conclude there was no error in how this testimony was
presented, and further, no prejudicial error in how the jury was instructed. Due to recent
legislative changes pursuant to Senate Bill No. 567 (2021–2022 Reg. Sess.; Senate Bill
567), Assembly Bill No. 124 (2021–2022 Reg. Sess.; Assembly Bill 124), Senate Bill
No. 81 (2021–2022 Reg. Sess.; Senate Bill 81), and Assembly Bill No. 1869 (2019–2020
Reg. Sess.; Assembly Bill 1869), defendant’s sentence is vacated and the matter is
remanded for resentencing.
PROCEDURAL SUMMARY
On December 2, 2019, a second amended information charged defendant with
committing corporal injury on a current or former spouse, cohabitant, or fiancée (Pen.
Code, § 273.5, subd. (f)(1);1 count 1), and that he had suffered a conviction of
section 273.5, subdivision (a), within seven years of this new charge. The information
further alleged that in committing the crime alleged in count 1, defendant inflicted great
bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
Defendant was also charged with contempt of court, a misdemeanor (§ 166, subd. (c)(1);
count 2). Finally, two special allegations were included alleging defendant suffered a
prior conviction that qualified as a “strike” (§ 667, subds. (b)–(i), 1170.12, subds. (a)–
(d)), which made him ineligible to be sentenced to county jail (§ 1170, subds. (f) & (h)),
and a prior serious felony conviction (§ 667, subd. (a)(1)).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
On December 6, 2019, the jury found defendant guilty of inflicting corporal injury
as alleged in count 1, and contempt of court. The jury also found defendant personally
inflicted great bodily injury in committing the corporal injury, and that defendant had a
prior misdemeanor conviction for domestic violence. Thereafter, defendant admitted he
suffered a prior conviction for a strike offense and a prior serious felony conviction.
On January 7, 2020, after denying defendant’s motion made pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced defendant to a term
of 18 years in prison. That term consisted of the upper term of five years for inflicting a
corporal injury, doubled to 10 years because of the prior strike, plus five years pursuant
to section 667, subdivision (a)(1), plus three years for having personally inflicted great
bodily injury. The jail sentence for the misdemeanor offense was ordered to be
concurrent to the prison term.
FACTUAL SUMMARY
This factual summary will focus on those facts necessary to resolve the issues
defendant raises in this appeal. On August 3, 2019, a neighbor of defendant’s called 911
to report she heard people shouting in a nearby apartment. Responding to that phone call,
Officer Meng Xiong encountered K.H. At trial, Xiong testified K.H. appeared distraught,
and that her left eye was swollen shut, she had dried blood on her nose and there was a
large handprint on her right cheek. In a video recording of the conversation at the scene,
K.H. told Xiong that she and her boyfriend, who she identified as defendant, had argued.
K.H. stated to Xiong there “was a lot of yelling going on and I ended up on the floor.”
K.H. told Xiong that defendant may have punched her in the face as well as tackled her
during the argument.
Officer Jose Ruiz also responded to the 911 call, and also recorded his
conversation with K.H. Without identifying defendant, K.H. told Ruiz “[h]e try to knock
my eye out for no reason.”
3.
At trial, K.H. testified defendant had been her boyfriend for three and a half years.
K.H. still considered defendant her boyfriend and was not happy about testifying in court
against him. K.H. testified she “[k]ind of” remembered talking to police on the date of
the incident, but did not remember what she told them. K.H. remembered defendant
hitting her, but it “was, like, a slap,” and did not know how her eye was injured. K.H.
said defendant slapped her during an argument about her phone, but stated he did not slap
her near her eye. She did not remember telling police defendant tackled her. K.H.
admitted during her testimony that she and defendant drank a considerable amount of
alcohol the night of the incident.
Additional testimony from K.H. addressed an incident that occurred
approximately three weeks later. On August 28, 2019, K.H. was driving with defendant
when she was stopped by the police. When asked who was with her in the car, K.H.
indicated she did not know defendant very well and did not know his real name. The
officer who made the traffic stop testified defendant admitted he provided a false name
and birthdate when he asked him to identify himself. Defendant admitted he did this
because there was a warrant out for his arrest. Defendant also acknowledged to the
officer there was a protective order in place regarding K.H.
Finally, when asked, K.H. could not remember if defendant had been convicted of
a misdemeanor for domestic violence against her. An officer who encountered K.H.
during that prior incident of domestic violence in March 2017, identified defendant as the
suspect in that case.
Stacy Gomez offered testimony as an expert on domestic abuse. Gomez described
her 17 years of experience working for various agencies helping victims of domestic
violence, and her education in social work. Gomez was then asked to address the
dynamics of intimate partner battering syndrome. Gomez explained the dynamics of
domestic violence involve a “cycle of violence,” that results in partners leaving then
coming back together numerous times, ultimately resulting in a learned helplessness by
4.
the victim of the abuse. This cycle includes a honeymoon phase, followed by a
tension-building phase, where everything is questioned and control is asserted, ending
with an explosive stage where violence occurs.
Gomez noted that even healthy relationships might go through a tension-building
phase, but through communication, the tension in these relationships gets resolved. In an
abusive relationship, the tension-building phase moves on to a more explosive stage
because the victim might not have the ability to communicate and the abuser wants
control. It is not uncommon for the relationship to reenter the honeymoon phase when
the abuser is apologetic and the victim wants to give the abuser another chance. After
going through several cycles of this behavior, Gomez explained that a victim might lie
about the abuse so the partner does not get into trouble or face a conviction for the abuse.
This often results in a victim saying they do not remember details about the event, or
blame themselves for what happened.
The Defense
Defendant discussed how he met K.H. and how long they had been together.
While they lived together for a time, they lived apart at the time of the events involved in
this case. Defendant described how K.H. would often drink alcohol until she passed out.
When he would confront her about this while she was drinking, they would get in a fight.
If he addressed the topic when she was sober, she often did not remember what had
happened. Defendant testified he observed K.H. get into fights with her own children
when she was drinking. Defendant admitted he and K.H. got into fights, but at most he
would push her away. He testified that he never “all out hit her.” In fact, K.H. would tell
him to leave when she was drinking to avoid things escalating.
Defendant testified on the evening of August 2, 2019, K.H. was already upset with
him and had already been drinking when she first showed up at his apartment. He was
eventually able to calm her down, suggesting they watch a movie. They eventually went
to a store to buy more alcohol. After they returned to the apartment, defendant and K.H.
5.
argued about who was “cheating.” Defendant admitted he scratched K.H.’s face in the
resulting scuffle. When defendant tried to leave, taking a box of beer with him to prevent
K.H. from drinking more, he got into a shoving match with K.H., ending with him
pushing K.H. who fell to the ground. Defendant insisted he did not hit, punch, slap, or
kick K.H., and he does not know how she received a black eye.
DISCUSSION
Again, defendant’s challenges in this appeal are limited to the testimony offered
by Gomez on intimate partner battering syndrome and the cycle of violence.
I. Defendant’s State and Federal Due Process Rights Were Not Violated by the
Testimony on Intimate Partner Battering Syndrome
A. Defendant Forfeited His Objection to this Testimony by Failing to
Object
Defendant believes the admission of the intimate partner battering syndrome
evidence violated his right to due process because it reduced the prosecution’s burden to
prove guilt beyond a reasonable doubt. Defendant argues that because this is an issue of
constitutional law, the objection cannot be waived, and this court should exercise its
discretion to consider the constitutional claim. A review of the record demonstrates
defendant has overstated the impact of the expert testimony offered here.
At no time during Gomez’s testimony did defense counsel object to any of the
information presented. In fact, during cross-examination, defense counsel made a point
of highlighting the fact Gomez did not know K.H. and did not watch any of the testimony
offered by her or others in the case. Gomez’s testimony never addressed the specific
facts of this case, focusing instead on explaining concepts surrounding intimate partner
battering syndrome and the typical behaviors adopted by individuals involved in that
dynamic.
Defense counsel failed to raise any due process concerns below. The rule of
forfeiture does not apply to “ ‘a claim that merely restates, under alternative legal
6.
principles, a claim otherwise identical to one that was properly preserved .…’ ” (People
v. Partida (2005) 37 Cal.4th 428, 436 (Partida).) Defendant raised no objection to the
evidence, even one that argued the testimony violated Evidence Code section 352
because the prejudicial impact of the testimony exceeded the probative value. A related
type of objection was needed allowing us to consider it now. (Partida, at pp. 437–438.)
Defendant cites the case of People v. Welch (1993) 5 Cal.4th 228, 237, for the
proposition that a legal issue is not forfeited if “an objection would have been futile or
wholly unsupported by substantive law then in existence.” Defendant contends such an
objection would have been futile because our Supreme Court has never issued a ruling on
whether evidence of battered woman’s syndrome or intimate partner battering syndrome
violates due process. In fact, our courts have discussed various evidentiary questions
resulting in claims that trials were “fundamentally unfair,” violating a defendant’s right to
due process. (See Partida, supra, 37 Cal.4th at p. 439.) Recently, the case of People v.
Lapenias (2021) 67 Cal.App.5th 162, 174, addressed a due process challenge to a similar
type of “syndrome” evidence, noting:
“[R]eviewing courts have routinely held the admission of CSAAS [child
sexual abuse accommodation syndrome] evidence does not violate due
process. (See, e.g., People v. Patino […] 26 Cal.App.4th 1737, 1744-1745
[a trial court’s admission of CSAAS evidence did not violate due process];
see also Amaya v. Frauenheim (9th Cir. 2020) 823 Fed.Appx. 503, 505
[California court’s ruling that the admission of CSAAS evidence did not
violate federal due process was not contrary to, or an unreasonable
application of, clearly established federal law].)”
While we do not believe a valid due process claim exists with respect to the
admission of the testimony offered by Gomez, the right to challenge this testimony was
forfeited because no objection was made in the trial court, even one made using an
alternative theory.
7.
B. Any Potential Error Was Harmless
Even if the due process claim raised by defendant was preserved, we find any
potential error harmless. Defendant argues the applicable standard of review is set out in
the case of Chapman v. California (1967) 386 U.S. 18, 24, because both his federal and
state due process rights have been violated. However, absent a finding there was
fundamental unfairness resulting from the admission of the Gomez testimony, any error
in admitting this evidence is subject to the state’s traditional test, first expressed in the
case of People v. Watson (1956) 46 Cal.2d 818, 836, asking whether there is a
reasonably probability “the verdict would have been more favorable to the defendant
absent the error.” (Partida, supra, 37 Cal.4th at p. 439.)
Expert witness testimony in the form of an opinion is limited and must be related
to a subject that is beyond common experience and of the type that would assist a trier of
fact. (Evid. Code, § 801, subd. (a).) In a criminal case, expert testimony is admissible on
the question of “intimate partner battering and its effects, including the nature and effect
of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims
of domestic violence.” (Evid. Code, § 1107, subd. (a).) However, this opinion testimony
cannot be offered against a criminal defendant “to prove the occurrence of the act or acts
of abuse which form the basis of the criminal charge.” (Evid. Code, § 1107, subd. (a);
see also People v. Brown (2004) 33 Cal.4th 892, 908.) Syndrome evidence is often
admitted to disabuse jurors of “ ‘common sense’ ” misconceptions about how victims of
certain types of violence, such as rape victims and abused children, will react when
offering testimony. (People v. Erickson (1997) 57 Cal.App.4th 1397, 1401.)
The record here demonstrates precautions were taken to ensure the jury considered
the evidence in its proper context. First, during Gomez’s testimony she was asked if she
was aware of the particular facts and circumstances involved in this case. Gomez
responded she was not. Gomez also stated she did not know defendant, did not know
8.
K.H., and had not read the police reports connected to the case. She then verified her
only purpose in testifying was to provide expert testimony on domestic violence.
Next, before the jury deliberated, the judge specifically provided them with
CALCRIM No. 850, as follows:
“You have heard testimony from Stacy Gomez regarding the effect of
Intimate Partner Battering Syndrome and the Cycle of Silence. Stacy
Gomez[‘s] testimony about Intimate Partner Battering Syndrome and the
Cycle of Violence is not evidence that the defendant committed any of the
crimes charged against him. You may consider this evidence only in
deciding whether or not [K] H.’s conduct was not inconsistent with the
conduct of someone who has been abused and in evaluating the
believability of her testimony.”
Appellant offers no evidence that jurors failed to not comply with this instruction.
Without such evidence, the jury is presumed to have understood and followed the
instructions provided by the court. (People v. Brady (2010) 50 Cal.4th 547, 566, fn. 9.)
Furthermore, a review of the evidence presented in this case shows there was more
than adequate evidence supporting the conviction. We must affirm the judgment unless
we conclude there is a reasonable probability a result more favorable to the defendant
would have been reached in the absence of any error. (People v. Watson, supra, 46
Cal.2d 818, 836; People v. Gonzalez (2018) 5 Cal.5th 186, 195.) Probability in this
context, “ ‘ “does not mean more likely than not, but merely a reasonable chance, more
than an abstract possibility.” [Citation.]’ ” (Richardson v. Superior Court (2008) 43
Cal.4th 1040, 1050.) Under this standard, defendant bears the burden of establishing
prejudice, which he did not do here. (Gonzalez, at p. 195.) We find no miscarriage of
justice and no reason to reverse defendant’s conviction related to the Gomez testimony.
II. The Trial Court Was Not Required to Provide Additional Limiting
Instructions
Defendant contends the trial court erred when it failed, sua sponte, to provide one
specific instruction on the limited use of the Gomez testimony. A review of the adequacy
9.
of jury instructions is based on whether the trial court “fully and fairly instructed on the
applicable law.” (People v. Partlow (1978) 84 Cal.App.3d 540, 558.) “ ‘In determining
whether error has been committed in giving or not giving jury instructions, we must
consider the instructions as a whole … [and] assume that the jurors are intelligent persons
and capable of understanding and correlating all jury instructions which are given.’
[Citation.]” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
The instruction at issue here is CALCRIM No. 303, which provides:
“During the trial, certain evidence was admitted for a limited purpose. You
may consider that evidence only for that purpose and for no other.”
Defendant makes this argument relying on the bench notes for CALCRIM No. 850 which
state when giving this particular instruction, the court should also provide a jury with
CALCRIM Nos. 303 and 332. CALCRIM No. 332 was in fact provided to the jury in
this case. Our review of the record fails to show that CALCRIM No. 303 was ever
requested by defendant, and is not among the jury instructions requested but not given to
the jury.
Interestingly, the bench notes accompanying CALCRIM No. 303 state:
“The court has no sua sponte duty to give an admonition limiting
consideration of evidence; however, it must be given on request.” (Italics
added.)
Case law has in fact held that absent a request, a trial court has no general duty to instruct
a jury on the limited purpose for which evidence has been admitted. (People v.
Murtishaw (2011) 51 Cal.4th 574, 590; see also People v. Haylock (1980) 113
Cal.App.3d 146, 150.)
We have considered the instructions given to the jury in this case in their entirety.
Based on those instructions, we believe the jury understood its responsibility on how to
view the expert testimony on intimate partner battering syndrome and the cycle of
10.
violence. Without a request being made on behalf of defendant, the trial court committed
no error when the instruction contained in CALCRIM No. 303 was not given to the jury.
III. Legislative Changes Require a Remand for Resentencing
Three separate legislative changes that went into effect on January 1, 2022, impact
the total sentence imposed on defendant. Defendant is entitled to a reconsideration of his
sentence because his appeal was not yet final when these legislative changes went into
effect. (In re Estrada (1965) 63 Cal.2d 740.) Thus, we vacate the sentence imposed and
remand for resentencing.
A. Senate Bill 567 and Assembly Bill 124
At the time defendant was sentenced, section 1170 provided that the choice
between the lower, middle, and upper term “shall rest within the sound discretion of the
court,” with the court to determine which term “best serves the interests of justice.” On
January 1, 2022, amendments to section 1170 made by Senate Bill 567 went into effect.
On that same date, an additional amendment to section 1170 became effective as a result
of Assembly Bill 124. Both changes to section 1170 potentially impact the sentence
defendant received in this case.
First, the change to section 1170 through Senate Bill 567 makes the middle term
the presumptive term. A trial court may now only impose an upper term when
circumstances in aggravation exist, and the facts underlying the aggravating
circumstances have been stipulated to by the defendant or found true beyond a reasonable
doubt by the jury or the court acting as the factfinder. (§ 1170, subd. (b)(1), (2), added by
Stats. 2021, ch. 731, § 1.3.) The trial judge may, however, rely on certified records of a
defendant’s prior convictions when considering these enhancements to a sentence without
submitting the issue of a prior conviction to a jury. (§ 1170, subd. (b)(3).)
When selecting the upper term of five years for the crime of inflicting corporal
injury (§ 273.5, subd. (f)(1)), the trial court stated as follows:
11.
“The Court notes that—that [defendant]’s prior convictions as an adult are
numerous and increasing now in seriousness. He has served prior prison
terms in both California and in the State of Washington. He was on parole
when the offenses here were committed and his prior performance on
parole or probation were unsatisfactory. The Court finds no circumstances
in mitigation relating to the [d]efendant. The appropriate term, therefore, is
[10] years in state prison for a violation of Penal Code
Section 273.5(f)(1).”2
Again, the plain language of section 1170, subdivision (b)(3) now provides in relevant
part:
“Notwithstanding paragraphs (1) and (2), the court may consider the
defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a
jury.” (Italics added.)
There is no mention of performance on probation or parole in this statutory language.
When listing its reasons for choosing the aggravated term, we cannot be certain
the court did not consider these factors cumulatively. The court did not state it was
exclusively relying on or verifying the fact of prior convictions by consulting a “certified
record of conviction.” (§ 1170, subd. (b)(3).) While the trial court references prior
prison terms as one of the reasons it chose the aggravated term, the court failed to
identify which prior prison terms it was referencing.
An additional change made to section 1170 through Assembly Bill 124 requires a
trial court to impose the lower term if certain mitigating factors exist. (§ 1170,
subd. (b)(6), added by Stats. 2021, ch. 695, § 5.) These potential mitigating
circumstances consist of the following:
“(A) The person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.
2 Although it is not specified on the abstract, the base term of five years was
doubled to 10 years because defendant had a prior strike under section 667,
subdivision (e)(1).
12.
“(B) The person is a youth, or was a youth as defined under subdivision (b)
of Section 1016.7 at the time of the commission of the offense.
“(C) Prior to the instant offense, or at the time of the commission of the
offense, the person is or was a victim of intimate partner violence or human
trafficking.” (§ 1170, subd. (b)(6)(A)–(C).)
These factors were not considered at the time of sentencing. The People concede these
factors may have relevance to defendant’s resentencing.
Because defendant’s sentence must be vacated, the trial court must consider all
these changes to section 1170 when imposing a new sentence in this case.
B. Senate Bill 81
In 2021, the Legislature enacted Senate Bill 81, which amended section 1385, to
specify factors the trial court must consider when deciding whether to strike
enhancements from a defendant’s sentence in the interest of justice. (Stats. 2021,
ch. 721, § 1.) Significantly, these requirements apply to sentences imposed after the
effective date of Senate Bill 81. (People v. Sek (2022) 74 Cal.App.5th 657, 674; § 1385,
subd. (c)(7).) Because resentencing in this case will take place after Senate Bill 81
became effective on January 1, 2022, the trial court must apply the new version of
section 1385 and consider whether defendant is eligible to have any relevant
enhancements stricken.
C. Assembly Bill 1869
When defendant was sentenced, the trial court imposed a fee authorized by
section 1203.1b. This fee of $296 was for the preparation of a presentence report.
Assembly Bill 1869 repealed section 1203.1b, effective July 1, 2021. (Stats. 2020,
ch. 92, § 47.) Assembly Bill 1869 also resulted in the enactment of section 1465.9,
subdivision (a), which provides “[t]he balance of any court-imposed costs” pursuant to
section 1203.1b “shall be unenforceable and uncollectible and any portion of a judgment
imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62.)
13.
Citing In re Estrada, supra, 63 Cal.2d 740, defendant contends he should be given
the retroactive benefit of these changes. There is no need to apply the presumptive
retroactivity of Estrada because of the plain language of section 1465.9. The statute
specifically states the balance of any assessments imposed pursuant to section 1203.1b
on June 30, 2021, is now unenforceable and uncollectable as of July 1, 2021. Moreover,
“any portion of a judgment imposing those costs shall be vacated.” (§ 1465.9, subd. (a).)
Section 1465.9 contains no language addressing or concluding defendants are
entitled to a refund of any amounts paid before July 1, 2021. We believe the Legislature
was fully aware of the impact of the changes given the fact Assembly Bill 1869 was
passed during the 2020 calendar year, but the repeal of section 1203.1b and the operative
date of section 1465.9 were not scheduled to occur until July 1, 2021. Most legislation
passed in one calendar year typically goes into effect on January 1 of the following year.
(Cal. Const., art. IV, § 8, subd. (c), par. (1); People v. Camba (1996) 50 Cal.App.4th 857,
865.) Given the careful wording of section 1465.9, and the delayed repeal of
section 1203.1b, if the Legislature had intended there to be a retroactive impact on fees
already collected, we believe that language would have been included in the statute.
The trial court may no longer enforce the fees imposed for the preparation of the
presentence report if that remains unpaid. As required by section 1465.9, the
enforcement of any unpaid balances for those assessments must be vacated. (See People
v. Greeley (2021) 70 Cal.App.5th 609, 626–627.)
DISPOSITION
Defendant’s sentence is vacated and this case is remanded for resentencing. The
trial court must reevaluate the appropriate term to impose for the conviction on count 1,
following all legislative changes made to section 1170. The trial court must also consider
whether recent legislative changes to section 1385 require the court to strike any eligible
enhancements. Finally, the trial court must vacate any unpaid balances for assessments
imposed under section 1203.1b. Following resentencing, the trial court shall forward an
14.
amended abstract of judgment to the appropriate authorities. In all other respects, the
judgment is affirmed.
15. | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902926/ | Order, Supreme Court, New York County (Alvin F. Klein, J.), entered September 3, 1987, which, inter alia, vacated and canceled an undertaking to discharge a notice of mechanic’s lien filed by plaintiff and discharged defendant S & H 88th Street Associates and its surety of all liability on the undertaking, unanimously reversed, to the extent appealed from, on the law and on the facts and in the exercise of discretion, with costs and disbursements, and the lien undertaking reinstated.
It was error and a clear abuse of discretion to provide in the settled order for the cancellation of the undertaking to discharge a notice of mechanic’s lien and to discharge the part*242nership defendant and its surety of any liability thereon. While the partnership defendant had earlier, on January 30, 1987, served plaintiff with a notice pursuant to Lien Law § 59 demanding that it commence an action to foreclose the lien on or before March 3, 1987 or show cause why the lien should not be vacated and canceled, the latter relief had not been sought in the subsequently served notice of motion, which asked only that the summons and complaint served on March 2, 1987 be dismissed for lack of personal jurisdiction. The section 59 notice was never mentioned in the supporting papers, or attached thereto; nor was any proof of service thereof provided, as required. Indeed, the court’s decision never indicated, in any manner whatsoever, that it was even considering such relief. Thus, the moving papers were indisputably deficient insofar as giving notice that cancellation was being sought and in furnishing proof of service of the section 59 notice. Moreover, and in any event, the decision to cancel a lien undertaking pursuant to Lien Law § 59 for failure timely to commence a lien foreclosure proceeding rests with the sound discretion of the court. (See, Jackson Co. v Haven, 87 App Div 236.) In circumstances where service had been timely attempted by service upon a secretary at the partnership’s law firm, whose office was specified as its principal place of business in its certificate of limited partnership, but not legally effectuated because of the failure to mail to the partnership at its last known residence (see, CPLR 308 [2]), it was an abuse of discretion to cancel the lien undertaking. It should also be noted that upon receipt of the motion papers, plaintiff reserved defendants with a summons and complaint, and issue has now been joined. No reason is suggested why plaintiff should be deprived of the security of an undertaking given to discharge its lien. Concur—Sullivan, J. P., Ross, Kassal, Rosenberger and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902927/ | this transferred CPLR article 78 proceeding, determination, dated August 27, 1986, of respondent Police Commissioner of the City of New York finding petitioner guilty of seven charges and specifications, including striking a civilian and wrongfully issuing summonses for disorderly conduct and harassment, and suspending him for 30 days and placing him on disciplinary probation for one year, unanimously confirmed, with costs and disbursements, and the petition dismissed.
The guilty findings are amply supported by the record and *243the penalty, claimed to be harsh and excessive, is notable only for its extreme leniency, both in terms of petitioner’s inexcusable conduct in an incident which he alone sparked, and in comparison to the sanctions meted out in other cases for infractions much less serious than those involved here. A disturbing question is raised in our minds as to petitioner’s fitness for police work. Unfortunately, the question of the inadequacy of the sanction is not before us. Concur — Kupferman, J. P., Sullivan, Carro, Kassal and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2129467/ | 770 F. Supp. 1281 (1991)
FEDERAL DEPOSIT INSURANCE CORPORATION, in its Corporate Capacity, Plaintiff,
v.
V. Edgar STANLEY, Robert Marcuccilli, Judith Stanley, David DeHart, Dan Stanley, Gilbert Bierman, and John Boley, Defendants.
Civ. No. F 87-325.
United States District Court, N.D. Indiana, Hammond Division.
July 19, 1991.
*1282 *1283 *1284 Charles E. Greer, Fred R. Biewecker, Ice Miller Donadio & Ryan, Indianapolis, Ind., C. Erik Chickedantz, Miller Carson & Boxberger, Fort Wayne, Ind., for plaintiff.
John R. Wilks; Wilks & Kimbrough, Fort Wayne, Ind., for Bierman.
F. Walter Riebenack, Linda J. Peters, Wyss McNellis Riebenack & Myers, Fort Wayne, Ind., for other defendants.
MEMORANDUM DECISION AND ORDER
WILLIAM C. LEE, District Judge.
This matter is before the court for a decision on the merits following a bench trial. On November 25, 1987, the FDIC filed an action against defendants V. Edgar Stanley, Robert Marcuccilli, Judith Stanley, David DeHart, Wayne Roe[1], Dan Stanley, Gilbert Bierman, and John Boley. In this suit, the FDIC alleged that defendants, from March 1982 through May 1984, while members of the Board of Directors of the Allen County Bank (Bank), breached various fiduciary duties they owed to the Bank in the management, supervision, and direction of the Bank. The FDIC's complaint alleges that as a direct and proximate result of the defendants' breach of fiduciary duties, the Bank suffered substantial losses and impairment of its assets. The complaint further alleges that the FDIC, in its corporate capacity as purchaser and assignee of certain assets of the Bank, has been damaged as a direct result of the defendants' breaches of fiduciary duties. After two years of struggling through a multitude of pre-trial motions, the parties commenced a lengthy and complicated trial before the court on December 6, 1989. Final arguments were heard on May 15, 1990 and on June 6, 1990 and post-trial briefs were filed thereafter. The following Findings of Fact and Conclusions of Law are entered pursuant to Federal Rule of Civil Procedure *1285 52(a), after having carefully reviewed the entire record, which consists of over 2,000 pages of testimony and more than 1,500 exhibits consisting of over 7,500 pages, and after having determined the credibility of the witnesses.
GENERAL FACTUAL BACKGROUND
Prior to November 22, 1985, the Allen County Bank and Trust Company was a banking institution organized and existing under the laws of the State of Indiana. As a state chartered bank that was not a member of the Federal Reserve System, the Allen County Bank was periodically examined by the FDIC and by the Indiana Department of Financial Institutions (DFI).
On August 19, 1981, the FDIC began an examination of Allen County Bank. Defendants Bierman, Boley, and DeHart were on Allen County Bank's Board of Directors at that time. After examining the Allen County Bank, the FDIC issued a Report of Examination which stated that the Bank's classified assets had risen to 124.2 percent of total capital and reserves, a figure described as "staggering." The report also stated that the Bank's loan portfolio was in a "very serious condition," and that "concerted effort must be made to improve the quality of the loans being placed upon the books." The report concluded that "it is imperative the directorate adequately monitor the lending function."
In October 1981, a special audit of the Allen County Bank was conducted as a result of the discovery that the Bank's president, Vincent Hansen, had been making fraudulent nominee loans. The auditors reported to the Bank's Board of Directors that Hansen had made the loans in violation of the Bank's lending policy, that the loans had not been accurately presented to the Board, and that loans had been made to borrowers with whom Hansen had personal financial dealings.
On February 10, 1982, the FDIC and the DFI entered into a Memorandum of Understanding with the Allen County Bank. The measures agreed to in the Memorandum of Understanding included increasing total capital and reserves by not less than $450,000, reducing the volume of loans classified substandard by 50 percent within 360 days, and provided detailed loan servicing and collection policies. Defendants Bierman, Boley, and DeHart were members of the Allen County Bank's Board of Directors at the time this Memorandum of Understanding was signed.
During the first nine months of 1982 the Allen County Bank had a net operating loss of $104,000, and on September 11, 1982, the FDIC began examinations of the Allen County Bank, the Leiters Ford State Bank[2], and the Western State Bank[3]. The September 11, 1982 Report of Examination for the Allen County Bank reflected continued deterioration in Allen County Bank's condition, including a substantial increase in classified assets (to over $2.8 million), a loan delinquency rate of over 25 percent, numerous loans unsupported by current credit informaiton, and abusive practices concerning insider loans and fees, including loans to, or for the benefit of, Chairman of the Board F. Walter Riebenack and directors Bierman, DeHart, and Marcuccilli.
The September 11, 1982 FDIC Report specifically criticized the Allen County Bank's past lending practices, including "overlending, poor selection of risk, incomplete credit information, self-dealing, failure to establish or enforce liquidation agreements, and lack of supervision." The Report also noted that little or no credit information was maintained for many commercial loans, including "participation loans purchased from affiliated banks." The results of the Allen County Bank examination were discussed in a meeting between *1286 the FDIC and the Bank's Board of Directors on October 5, 1982. The formal written Report of Examination was transmitted to the Bank's Board of Directors by letter of November 18, 1982. This letter refers to the "continued deterioration of the bank's condition" and concludes that, "The Board would be well advised to act promptly to effect resolution of all problem areas noted above."
On February 22, 1983, the FDIC and the DFI entered into a second Memorandum of Understanding with the Allen County Bank. Among other things, the Allen County Bank agreed to reduce assets classified substandard by $600,000 by June 30, 1983, and by an additional $600,000 by December 31, 1983. The Bank also agreed to implement an amended written loan policy, acceptable to the regulators, by March 31, 1983.
On November 22, 1985, the DFI initiated liquidation proceedings against the Allen County Bank pursuant to I.C. § 28-1-3.1-1 et seq. The Bank was closed on that same date and the Allen County Superior Court confirmed the appointment of the FDIC as receiver of the Bank, pursuant to I.C. § 28-1-3.1-5. On November 22, 1985, the FDIC as receiver of the Bank, pursuant to I.C. 28-1-3.1-7 and 12 U.S.C. § 1823(c)(2)(A), entered into an agreement under which it sold certain assets of the Bank to the FDIC in its corporate capacity. Among the assets purchased by the FDIC in its corporate capacity were all claims against directors, officers, or employees of the bank arising out of any act or acts of any such persons in respect to the Bank or its property, by virtue of non-performance or manner of performance of their duties.
The FDIC, in its corporate capacity, acquired the loans and leases at issue in this case. The FDIC claims that these loans and leases, which were participated in or made directly by the Allen County Bank, were inappropriate and involved other banks owned and operated by the inside directors. The loans and leases at issue are as follows:
(a) Abbott Coal and Energy Co.;
(b) Edward E. and Linda L. Carper d/b/a Ed Carper & Sons;
(c) James and June Conn;
(d) DeVries Hog & Grain Farms, Inc.;
(e) Leonard and Eileen Diamond;
(f) M & M Designers, Inc.;
(g) Pinkerton Farms, Inc; and
(h) Powell Implement, Inc.
The individual defendants in this case served on the Allen County Bank's Board of Directors at various times. Some of the defendants were also officers of the Allen County Bank and some of the defendants served in various capacities as officers/directors of Leiters Ford State Bank, Counting House Bank, and/or Western State Bank.
Defendant V. Edgar (Ed) Stanley was a member of the Board of Directors of Allen County Bank from March 24, 1982, through May 22, 1984. Ed Stanley also served as President of Allen County Bank from March 24, 1982, through September 13, 1983. Defendant Robert Marcuccilli was a member of the Board of Directors of Allen County Bank from March 24, 1982, through May 22, 1984. Defendant Judith Stanley became a member of the Board of Directors of Allen County Bank on March 24, 1982, a position which she held until May 8, 1984. Defendant David DeHart became a member of the Board of Directors of Allen County Bank on August 11, 1981, a position which he held until May 8, 1984. Defendant Dan Stanley became a member of the Board of Directors of the Allen County Bank on or about May 25, 1982, a position which he held until May 8, 1984. Defendant John Boley was a member of the Board of Directors of Allen County Bank from 1970 through June 16, 1983. At one time, John Boley also served as Secretary to the Board. John Boley attended one Allen County Bank Board meeting between November 9, 1982, and his resignation in June of 1983. Defendant Gilbert Bierman was a member of the Board of Directors of Allen County Bank from May 1978 through April 9, 1984[4]. In 1982, the primary ownership interest in the bank was sold from *1287 its then present owners to Ed Stanley and related individuals. Stanley advised Bierman that Bierman no longer had to come to any meetings of the Board of Directors but wished that Bierman's name could still be affiliated with the bank for purposes of continuity and credibility as Bierman was a noted orthopedic surgeon. Gilbert Bierman attended no Allen County Bank Board meetings after October 5, 1982. During the time defendants were Directors of Allen County Bank, they were all also shareholders of Allen County Bank. During the period from approximately May 1982 through May 1984, defendants Ed Stanley, Robert Marcuccilli, Judith Stanley, David DeHart, Wayne Roe, and Dan Stanley owned, at various points in time, approximately 40 to 46 percent of the outstanding shares of Allen County Bank.
From March 1982 through May 1984, defendants Ed Stanley, Judith Stanley, David DeHart, and Wayne Roe served concurrently as Directors of Allen County Bank, Leiters Ford State Bank, Counting House Bank[5], and Western State Bank. Robert Marcuccilli served concurrently during this period as a director of Allen County Bank, Counting House Bank, and Western State Bank. Marcuccilli also served as a Director of Leiters Ford State Bank until January 1983. Marcuccilli was also Chairman of the Board of Counting House Bank from March 1982 through May 1984.
A. Abbott Coal and Energy Company
Abbott Coal and Energy Company was a partnership which operated a coal mine in southern Indiana and had offices in Louisville, Kentucky. The Abbott Coal partnership had four partners, Robert Goldman, William Gladstone, Charles Curry, and John Swets. During the time period relevant to this litigation, the Allen County Bank had entered into two transactions involving Abbott Coal.
First, on December 30, 1982, Allen County Bank was assigned without recourse an installment lease in the amount of $130,484.00 between Northern Indiana Leasing, Inc. and Abbott Coal and Energy Company. Abbott Coal's lease, which the Allen County Bank purchased, was secured by a bulldozer[6]. Northern Indiana Leasing[7] had purchased the bulldozer on December 30, 1982 from Clark Machinery Corporation, of which Mr. Curry was president, for $95,500[8]. Northern Indiana Leasing then sold *1288 the lease to Allen County Bank for the net amount of $110,500. The second transaction occurred on February 12, 1983, when the Allen County Bank purchased, in full, a $60,000.00 commercial loan to Abbott Coal from the Counting House Bank. This loan was for the stated purpose of purchasing two Cat loaders.
Prior to purchasing the Abbott Coal lease and the Abbott Coal loan, the Allen County Bank had been involved in only one coal-related loan to Hartman Construction Company which had been written off as a loss of $39,682.00 on the September 1982 FDIC Report of Examination. With this recent unprofitable experience with coal-related loans fresh in mind, Allen County Bank should have been hesitant to become involved with Abbott Coal in the absence of a strong earnings record. However, this was not the case. As the evidence presented at trial showed, when the Allen County Bank purchased the Abbott Coal lease and loan, Abbott Coal's financial condition was very poor.
On November 11, 1982, Churney and Counts, a CPA firm located in Louisville, Kentucky, compiled a balance sheet and related statement of operations for Abbott Coal and Energy Co. as of September 30, 1982. This unaudited compilation was limited to presenting, in the form of financial statements, information that was the representation of management. Far from showing a strong earnings record, Abbott Coal's statement of operations for the nine months ended September 30, 1982 showed a net loss of $553,699.00. Abbott Coal's balance sheet as of September 30, 1982 showed $15.00 cash on hand and a total of $229,462.00 in current assets. Fixed assets, less depreciation, totaled $1,233,644.00 and other assets totaled $1,006,627.00, with $996,752.00 of the total other assets consisting of "notes receivable." On the other side of the balance sheet, Abbott Coal had $170,507.00 in current liabilities including a $44,842.00 bank overdraft. Abbott Coal also had long-term debt in the amount of $1,595,117.00. Partners' equity was listed as $695,109.00.
Clearly, even this unaudited financial information showed that Abbott Coal was a poor candidate for a loan or a lease. The company had been suffering significant operating losses throughout the year and already had a high degree of long-term debt with few current assets with which to service the debt. Furthermore, a comparison of Abbott Coal's September 30, 1982 balance sheet with its July 31, 1981 balance sheet shows that Abbott Coal had run into severe financial difficulties during the ensuing year. First, on July 31, 1981, Abbott Coal had a long-term debt (less current maturities) of only $330,890.00, while on September 30, 1982, Abbott Coal had long-term debt in the staggering amount of $1,594,117.00. This indicates that Abbott Coal was operating on borrowed funds rather than on operating income. Second, although total assets on September 30, 1982 were $2,459,733.00, while total assets were only $1,876,505.00 on July 31, 1981, nearly $1 million of the September 30, 1982 assets were in the form of "notes receivable" with no indication of Abbott Coal's ability to collect on the notes mentioned anywhere in the 1982 financial statements. Third, Abbott Coal's partners' equity had been cut nearly in half from July 31, 1981, when partners' equity was $1,234,788.00 to September 30, 1982 when partners' equity was only $695,109.00. Obviously, on December 30, 1982, Abbott Coal did not appear to be a prosperous company with the ability to meet payments on a new lease or loan.
At first glance, the balance sheets of two of Abbott Coal's partners, Robert Goldman and William Gladstone[9], appear reassuring. On September 2, 1982, Robert Goldman's balance sheet showed a total net worth of $1,515,300.00. However, upon closer observation, Goldman's balance sheet appears to be misleading in several respects. First, $750,000.00 in assets is attributed to Goldman's interest in Abbott Coal and Energy. It is noted that on September *1289 30, 1982, total partners' equity in Abbott Coal was $695,109.00. Thus, the $750,000.00 figure is totally unrealistic. Second, the two other major assets listed, Nixon-Trust tapes at $320,000.00 and Hubco Gas and Oil at $250,000.00, are not explained with any supplemental documentation. Finally, Mr. Goldman does not claim to have any liabilities other than utilities and insurance totaling $3,700.00. Although Mr. Goldman has included his interest in Abbott Coal as an asset, he has failed to include his share of Abbott Coal's liabilities in the liabilities section of his balance sheet. Thus, Mr. Goldman's net worth on his September 2, 1982 balance sheet was obviously grossly overstated.
William Gladstone's balance sheet of December 31, 1981[10] suffers similar deficiencies. Although Gladstone listed his net worth as $1,695,000.00, he claims his net worth equals his assets. His assets include $500,000.00 for his interest in Abbott Coal and $300,000.00 for "Oil and Gas". The "Oil and Gas" item is not supported by any documentation. Incredibly, Gladstone's balance sheet does not list any liabilities. However, Gladstone's balance sheet does list a $2,000,000.00 contingent liability with Liberty National Bank on Abbott Coal. Nevertheless, Gladstone, like Goldman, had overstated his net worth on the balance sheet which he submitted to Allen County Bank to support the contention that his partnership should be extended further credit. After reviewing this evidence, the court agrees with the testimony of Don Imel, a bank examiner for the FDIC, that a prudent banker would not have given these financial statements any credibility without some supporting information and documentation to support the values on the financial statements. Thus, Goldman's and Gladstone's financial statements do not support the defendants' contentions that Abbott Coal had the ability to service any new debt[11].
The next question that arises is whether Abbott Coal's payment history on the lease in question shows that Abbott Coal did in fact have sufficient cash flow to pay off the lease. The defendants point out that Abbott Coal made payments on the lease up to and including the March 15, 1984 payment and brought the lease balance down from $130,484.40 to $58,507.78. Plaintiff, however, notes that in March 1983, less than three months after the assignment of the lease to the Allen County Bank, Abbott Coal defaulted. Plaintiff claims that Abbott Coal made only sporadic payments after March 1983. A review of the evidence shows that Abbott Coal made twelve payments of $5,436.85, as well as one payment of $5,075.00 and one payment of $1,659.42. Although Abbott Coal did not always make its scheduled payment in a timely manner, on those occasions when it did skip a monthly payment it would usually make two payments in the next month. Thus, while the payments were not exactly regular they were not sporadic either.
Nevertheless, it is clear that Abbott Coal defaulted on the lease. To remedy this situation, on March 12, 1983 the Allen County Bank sent a demand letter to Abbott *1290 Coal declaring Abbott Coal to be in default for missing a scheduled payment. Apparently, Abbott Coal was also in default on its loans to Western State Bank and Counting House Bank. On March 14, 1983, Robert Goldman, on behalf of Abbott Coal, and Robert Marcuccilli, on behalf of Counting House Bank, entered into an agreement called a Memorandum of Understanding. This Memorandum provided in pertinent part:
In reply to the telephone conversation of March 12, 1983 between Counting House Bank, and Robert Goldman it is mutually agreed:
1. That Abbott Coal and Energy Louisville Ky has various loans due to Allen County Bank Leo, Indiana, Western State Bank South Bend, Indiana and Counting House Bank Warsaw Indiana, and said loans are presently in default.
2 That said banks have a security interest in various equipment & proceeds & products of Abbott Coal & Energy Co.
3. That said banks presently have put Indianapolis Power and Light Company on notice of their interest in the proceeds of any and all funds due Abbott from Indianapolis Power.
4. That Mr. Goldman, a general partner of Abbott, is willing to provide his personal guaranty and the guaranty of his wife to each of the above mentioned lenders, to assure repayment of said loans.
5. That Mr. Goldman, will provide a Certified Check to Counting House Bank for $26,000.00 on 3/14/83. Said funds will be applied as follows:
a) 2 Payments each to Allen County Bank for the lease payments due February 15th, 1983, and March 15, 1983 ... $10,873.70.
* * * * * *
7. That all parties agree that in the event of any future default by Abbott said lenders shall present a copy of this memorandum to the Indianapolis Power and Light Company and this shall constitute an assignment of any proceeds due Abbott and shall authorize Indianapolis Power to remit to lenders any funds due Abbott, and hold Indianapolis Power harmless for same.
8. That the lenders will withdraw the letters of Demand presented through counsel for the past default.
9. That upon receipt of the $26,000.00 that the above Lenders will notify, by telegram, Indianapolis Power that the lenders release any present claim on the funds due Abbot [sic] Coal and Energy.
The Allen County Bank did, in fact, receive money directly from Indianapolis Power and Light Company. The evidence also shows that on March 14, 1983, Mr. and Mrs. Goldman signed a loan guaranty agreement in which they agreed to jointly and severally guarantee credit extended to Abbott Coal by the Allen County Bank to the extent of $100,000.00.
In early 1984, the Small Business Association (SBA) approved a $450,000 loan to Abbott Coal. Prior to approving this loan the SBA performed its own investigation of the financial position of Abbott Coal and its principals and examined the company's cash flow and apparently found them to be creditworthy. Mr. Hadden, a loan officer at the SBA office in Indianapolis, Indiana, and Mr. Marcuccilli took a trip down to the Abbott Coal mine in order for Mr. Hadden to view the mine and to determine the extent of Abbott Coal's capabilities. Subsequently, the SBA issued a 90 percent guarantee of a $450,000.00 loan to Abbott Coal from the Counting House Bank.
The bulldozer which secured the Allen County Bank's lease was not adequate collateral to insure payment on the lease. First, it was unwise for the Allen County Bank to secure a lease with a piece of heavy equipment which was to be used in a coal mining operation in the southernmost reaches of Indiana. Prudent banking practices mandate that a lending bank's collateral be located in the same geographic area as the bank so that the collateral can be monitored. In this regard, the FDIC presented credible testimony that bulldozers are not a good form of collateral because they depreciate rapidly and, as they are normally kept at the mining or construction *1291 site with little or no security, bulldozers are subject to vandalism and theft.
At the time the bulldozer lease was purchased by the Allen County Bank, a similar lease was purchased by the Western State Bank. Abbott Coal was the lessee on both of these leases. When Abbott Coal filed bankruptcy, Western State Bank and Allen County Bank jointly retained counsel, Mr. Jay Jaffe, to obtain abandonment orders with regard to the bulldozers. Once abandonment was obtained, Western State Bank immediately began trying to sell its bulldozer and after approximately two to three months, sold it for $61,000.00. The principal balance on the Allen County Bank's bulldozer in October of 1984 was approximately $58,000.00. Defendants contend that if the Harris Board of the Allen County Bank had exercised the same diligence as the Western State Bank, then the Allen County Bank would have been able to sell its bulldozer for approximately $60,000.00 with no loss of principal. Defendants conclude that because the Allen County Bank, under the guidance of the Harris Board, did not protect its interest in the bulldozer, it was subsequently sold to Coal Age Mining for only $12,000.00 when the bank had previously been offered $40,000.00 for the bulldozer.
A review of the evidence shows that Western State Bank sold its bulldozer for $61,000.00. Western State Bank's bulldozer was sold to Mr. Charles Curry, a partner in Abbott Coal, who had initially sold both of the bulldozers to Northern Indiana Leasing, who then leased them to Abbott Coal. Mr. Curry was provided 100 percent financing and zero percent interest as part of a restructuring of Mr. Curry's debt at Counting House Bank. Mr. Curry was subsequently released from Abbott Coal's debts.
The November 1, 1985 FDIC Report of Examination, in discussing Charles and Cynthia Curry's indebtedness to the Counting House Bank in the section entitled "Assets Subject to Adverse Classification," states that "$62,000 was disbursed to the affiliated Western State Bank, this being the portion of the loan at zero interest rate. These funds were used to pay-off the remaining balance on a loan on a dozer to Abbott Coal who had filed bankruptcy." Thus, Counting House Bank loaned Mr. Curry $62,000 which was used to pay off Abbott Coal's bulldozer lease which Western State Bank had purchased on December 30, 1982. The FDIC Report further states that "Mr. Curry was also a former partner in a business known as Abbott Coal and Energy which was adversely classified at the January and September 1984 examinations. Mr. Curry was released from liability on that debt in March 1984 by former chairman Marcuccilli."
On cross-examination during the trial, Ed Stanley admitted that the FDIC Report's reference to a bulldozer was reference to the bulldozer that secured Western State Bank's lease to Abbott Coal. Ed Stanley denied that the $62,000 loan to Mr. Curry was at zero percent interest rate. However, nowhere in the evidence is there any other indication that the interest rate on this loan was something other than zero percent. Further, Ed Stanley admitted that Mr. Curry was released from the Abbott Coal debt.
The fact that the Counting House Bank loaned Mr. Curry the money to pay off Abbott Coal's bulldozer lease at the Western State Bank, and that Mr. Curry was then released from liability on this debt, does not necessarily establish that the sale of Western State Bank's bulldozer was a "sham." However, the sale of Western State Bank's bulldozer to Mr. Curry can hardly be considered a "comparable sale" for purposes of determining the price range within which the Allen County Bank should have been able to dispose of its bulldozer if the Harris Board had exercised due diligence in securing a buyer. Thus, the defendants' evidence that the Western State Bank sold its bulldozer for $61,000.00 is given no weight by this court.
The defendants have also claimed that the Allen County Bank was offered $40,000 for its bulldozer, but due to lack of diligence of the Harris Board, the sale was not consummated. In analyzing this contention, it is helpful to trace the chronology *1292 of events leading up to the eventual sale of Allen County Bank's bulldozer for $12,000.00.
Abbott Coal filed Chapter 11 bankruptcy on or about June 25, 1985 in the United States Bankruptcy Court for the Western District of Kentucky at Louisville. However, on October 2, 1985, an agreed order was entered in Abbott Coal's bankruptcy proceeding lifting the automatic stay on the bulldozer and surrendering possession of the bulldozer to the Allen County Bank. Previously, on August 27, 1984, William F. Clarkson, III, President of Clarkson Equipment Co., submitted an offer to purchase the bulldozer to Jerry K. Conrad, then president of Allen County Bank. Clarkson submitted a proposed purchase price of $40,000 amortized over a ten-year period at a 12 percent fixed rate with a five-year balloon payment, with the first payment to be due on December 1, 1984.
On October 19, 1984, Robert Marcuccilli contacted Donald G. Richards of the Allen County Bank. Marcuccilli advised Richards to not accept the long-term offer from Mr. Clarkson. Marcuccilli further advised Richards to keep the equipment, advertise it and sell it direct. On October 29, 1984, Mr. Clarkson informed Mr. Jay Jaffe, joint counsel for the Counting House Bank and the Allen County Bank, that the Clarkson Company was no longer interested in the Allen County Bank's bulldozer. Clarkson stated that "The decision is due to the indecisiveness of Allen County Bank to contact me and the Companies [sic] need for immediate use of a dozer forced us to move ahead on another piece of equipment."
On February 27, 1985, Rich Equipment Co. appraised the value of the bulldozer at $20,000-$22,000 "as is", and at $33,000-$35,000 "with repairs." Also on February 27, 1985, Bryant Equipment, Inc. appraised the value of the bulldozer as follows: wholesale price, $15,000-$20,000; retail price, $20,000-$25,000; auction price, $20,000-$22,000; auction preparation approximately $3,000; auction commission approximately 8 percent.
Thus, prior to Abbott Coal's bankruptcy, Marcuccilli was advising the Allen County Bank not to sell the bulldozer for $40,000.00, under a long-term payment schedule. A few months later, the bulldozer was appraised at values ranging from $15,000.00 to $35,000.00. Eight months later, the bulldozer was sold for $12,000.00, a price close to the bulldozer's appraised values. This evidence simply does not support the defendants' contention that Allen County Bank's loss on the bulldozer was a result of inaction by the Harris Board. Clearly, as the Allen County Bank should have predicted, the bulldozer had depreciated rapidly while in use at the Abbott Coal mine. Any loss suffered by the Allen County Bank on its lease to Abbott Coal was a result of the Bank's earlier act of taking insufficient collateral.
In Allen County Bank's second transaction with Abbott Coal, the Allen County Bank purchased, from the Counting House Bank, a $60,000.00 commercial loan to Abbott Coal. The original loan application, dated February 12, 1983, stated that the purpose of credit was "Business Operating Capital to purchase equipment" and listed the following as collateral for the loan: 1976 Caterpillar 988 Loader, Serial Number #SN87A7407, 6½ yd bucket; 1975 Michigan 275 Loader, Serial # 425A195-CAC, 6½ yd bucket.
Exhibit A to the Abbott Coal partnership agreement, dated October 1, 1982 lists equipment owned by the partnership, and item No. 1, a Michigan 275 loader, and item No. 10, a Cat 988 loader, are the same loaders that the defendants claim were purchased with this loan. On cross-examination, Ed Stanley admitted that the collateral listed on the February 12, 1983 loan application was already owned by Abbott Coal as early as October 1, 1982 and that the loan could not have been a purchase money loan.
A review of the evidence shows that both loaders were subject to a blanket lien asserted by Leasing Service Corporation and duly perfected in July 1981. Liberty National Bank also had a lien on both loaders, filed in November 1982. The first filing of record for the Counting House Bank on the loaders was a security agreement filed on *1293 March 1, 1983. When Abbott Coal filed bankruptcy in 1985, Leasing Service Corporation, by an Agreed Order, was granted the possession of both loaders. As Mr. Jay Jaffe, counsel for the Counting House Bank in the bankruptcy proceedings, stated in a letter to Allen County Bank, "Given the two prior filings, and no other supporting documentation, it was quite impossible to argue that Counting House Bank had a purchase money security interest in these items of equipment." Clearly, considering the complete lack of collateral to secure Abbott Coal's $60,000.00 loan, a reasonable and prudent banker, in an arm's length transaction would not have purchased this loan[12].
EDWARD AND LINDA CARPER, d/b/a ED CARPER & SONS
Edward and Linda Carper operated a dairy farm, under the name of Ed Carper & Sons, in Corunna, Indiana. On April 26, 1983, Mr. Fred Plantz, president of Northern Indiana Leasing, presented the Allen County Bank's Board of Directors the opportunity to purchase the Carper lease, which Northern Indiana Leasing was considering entering into. The Carper lease, as presented to the Board of Directors, was to be in the amount of $20,000 for 36 months at an interest rate of 17%. The purpose of the lease was to enable the Carpers to purchase 21 head of dairy cattle. Mr. Marcuccilli motioned to approve the loan and Mr. DeHart seconded the motion.
On July 14, 1983, Northern Indiana Leasing and Ed Carper entered into a lease agreement whereby Northern Indiana Leasing leased 21 Holstein dairy cows to Ed Carper for a period beginning July 14, 1983 and ending September 15, 1987. Ed Carper agreed to pay Northern Indiana Leasing $718.32 per month for 48 months, with the first payment due on September 5, 1983. On July 25, 1983, Northern Indiana Leasing assigned the Carper lease to the Allen County Bank without recourse.
The Carpers made regular monthly payments of $718.32 on the lease through August, 1984. However, on October 15, 1984, the Carpers filed a voluntary petition for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Northern District of Indiana. On November 4, 1987, the Bankruptcy Court approved the Carper's Amended Plan of Reorganization and on November 18, 1987, the Carpers paid the FDIC $2,625.00 as payment in full on the Chapter 11 plan.
Although the FDIC recovered $2,625.00 from the Carpers on its claim in the Carper bankruptcy, the FDIC seeks to recover, from the defendants, the total principal and interest losses on the Carper lease through December 6, 1989 in the amount of $21,421.46, with a per diem interest rate of $4.06 to the date of judgment. The FDIC also seeks to recover the Allen County Bank's expenses of $416.25 and FDIC legal fees in the amount of $5,615.00.
The evidence clearly shows that the lease constituted 100% financing of the 21 head of dairy cattle which were the primary collateral for the lease. However, the Allen County Bank and Northern Indiana Leasing investigated Carper's financial position which indicated that Carper had the ability to make payments on the lease, and there was ample collateral securing the lease in which the Allen County Bank's interest had been perfected.
It is not uncommon for banks in rural areas to give 100% financing on cattle, as a herd of dairy cattle is an income producing asset. Northern Indiana has many successful dairy farms, and Carper's dairy farm, located in Corunna, Indiana (DeKalb County) is situated well within Allen County *1294 Bank's lending area, such that the Bank could readily monitor its collateral.
Schedule F of Carper's 1980 income tax return, detailing Carper's farm income and expenses for the year, shows a net farm loss of $5,730.99. Carper's 1981 tax return showed a net farm loss of $6,910.00. And Carper's 1982 tax return showed a net farm loss of $917.89. The FDIC notes that Carper's interest expense jumped from $620.48 in 1981 to $13,196.22 in 1982.
In 1980 Carper was not yet in the dairy business and earned only $1,733.26 for farm related work, plus $160.00 from the sale of honey. However, in 1980 Carper incurred $7,624.25 in expenses for supplies, interest, depreciation and livestock hauling. Defendants claim that the proper way to assess Carper's financial position for 1980 is to disregard depreciation and interest expense, leaving Carper with a loss of only $3,634.50 for 1980. 1981 was Carper's first year in the dairy business and he showed a taxable loss of $6,910.00 for that year. Defendants contend that Carper's loss was actually only $753.52, after disregarding depreciation and interest expense. 1982 was Carper's first full year of milking production and he showed a taxable loss of $917.89. Again, defendants insist that interest expense and depreciation for 1982 should be disregarded, leaving Carper with $21,202.89 in net farm income for 1982.
Although Carper's farm related expenses cannot be completely disregarded, these expenses should not be allowed to obliterate the fact that Carper's gross farm profits increased from $1893.26 in 1980 to $31,211.10 in 1981, and to $45,334.36 in 1982. Furthermore, Carper was clearly improving his overall financial condition at a rapid rate, even though he showed a net loss for tax purposes in each of the three years.
Carper's personal financial statement on February 15, 1983 indicates that he had a net worth in excess of $76,000[13]. Carper's only liquid asset was a cash balance of $100.00 and the balance sheet indicated a debt-to-net worth ratio of 1.63 to 1[14].
Although at the time of purchasing the Carper lease the defendants realized that Carper's balance sheet and tax returns showed that Carper was not yet financially strong, the defendants nevertheless believed that Carper had the ability to run his dairy farm successfully and meet his financial obligations. Ed Stanley testified that, in reviewing Ed Carper's financial statements, he felt it to be significant that a large portion of Carper's debt ($82,000.00) was long-term debt in the form of real estate loans. Mr. Carper's other primary creditor was Lincoln National Bank, to whom Carper owed approximately $45,000.00. Mr. Carper incurred this debt in 1982 to purchase 26 head of dairy cows. Ed Stanley testified that the Board of Directors looked favorably on the fact that Mr. Carper's financial statement reflected that he did not have a lot of debt to service other than debt on income-producing assets.
With regard to collateral, the Allen County Bank had a security interest in the 21 Holstein dairy cattle which were the subject of the lease. This security interest was perfected by filing UCC's in the DeKalb County Recorder's Office on July 26, 1983, on the cattle as well as on the products and proceeds therefrom. As further security, the Allen County Bank took an interest in Mr. Carper's silo, auger, pipeline, and bulk milk tank on July 14, 1983. In September, 1983, Northern Indiana Leasing filed UCC's on the equipment, listing the Allen County Bank as "Assignee of Secured Party," with both the DeKalb County Recorder's Office and the Secretary of State. Unknown to the Allen County Bank, the silo had a prior filing on it, but *1295 apparently the other equipment did not have any prior filings.
The Carper lease was secured to some extent by a dairy assignment with County Line Cheese Co., Inc., located in Auburn, Indiana, which buys milk from dairy farmers and markets a variety of dairy products. In an agreement dated July 14, 1983, Ed Carper authorized County Line Cheese (or any other buyer) to deduct the sum of $718.32 each month from sums otherwise due for milk marketed, to be paid to the Allen County Bank. By the terms of this dairy assignment, it was irrevocable. The Allen County Bank received payments from County Line Cheese pursuant to this dairy assignment through August of 1984. However, in a memorandum to the Carper credit file dated August 29, 1984 it was noted that:
Barb Kingsley of County Line Cheese informed Loan Dept. that Carper cancelled automatic payment to Bank by Company on 8-9-84. We no longer are receiving checks. A review of the file does not show an assignment of milk proceeds was taken as collateral. The account is current at this point and due for 9-5-84.
Thus, Carper unilaterally revoked the "irrevocable" dairy assignment.
The Bank required Mr. Carper to purchase credit life insurance in the principal amount of the lease, $34,479.36. The lease also required Mr. Carper to maintain insurance on the cattle with the Allen County Bank named as an additional insured.
After reviewing all the evidence presented to the court, the court finds that the defendants were not negligent in purchasing the Carper lease. The defendants had investigated Carper's financial history prior to making the purchase of the lease. Although purchasing the lease entailed a fairly high degree of risk due to Carper's recent losses and the fact that he was starting a new business, the court finds that the defendants' act of exposing the Bank to this degree of risk did not approach the level of negligence. This finding is fully supported by the fact that the Bank had an interest in the cattle as collateral and the cattle were income-producing assets. Furthermore, the Bank had the right to receive monthly payments of $718.32 pursuant to a dairy assignment, Mr. Carper was required to purchase credit life insurance in the principal amount of the lease and to also purchase insurance on the leased cattle. Although the Carpers ultimately filed bankruptcy and the Allen County Bank and the FDIC suffered a loss on the lease, at the time the lease was purchased it was a quality banking asset.
JAMES AND JUNE CONN
James and June Conn were grain farmers who farmed approximately 800 acres of land near Royal Center, Indiana in Cass County. On June 3, 1983 the Leiters Ford State Bank loaned $147,262.00 to the Conns. The loan was payable upon demand and carried an interest rate of 1¼% below the Leiters Ford State Bank's base rate. On June 24, 1983 the Leiters Ford State Bank issued to the Allen County Bank a participation of $144,755.00 in the loan for $147,262.00 made to James and June Conn on June 3, 1983.
On July 19, 1983, the Leiters Ford State Bank loaned $33,530.19 to the Conns, at a rate of 1½% below Leiters Ford State Bank's base rate, payable upon demand. On this same date, the Leiters Ford State Bank issued to the Allen County Bank a participation of $13,000.00 in the loan for $33,530.19 made to James and June Conn.
A prudent banker, in an arm's length transaction, would not have participated in the Conn loans. First, the Conns were highly leveraged. The Conns' financial statement as of January 31, 1983 showed that they had debts of $1,575,500.00 and a net worth of $705,750.00, for a debt-to-net worth ratio of 2.23 to 1. Furthermore, Don Imel, an FDIC bank examiner who examined the Allen County Bank, testified that the Conns had valued their farm land at $3125.00 per acre when real estate was selling in the $2,000.00 per acre range. Valuing the Conns' 480 acres of land at $2,000.00 per acre, rather than at $3125 per acre, decreases their net worth by $540,000.00 to $165,750.00. Thus, the Conns' *1296 debt-to-net worth ratio was actually 9.51 to 1.
Next, the Conns had suffered a net loss in 1982 of approximately $60,000.00 and a loss from farm operations of approximately $80,000.00. Plaintiff's exhibit # 170, an application for Farmers Home Administration Services, filled out by the Conns on March 16, 1983, shows that for 1982 the Conns had total cash income of $249,084.00 and total cash expense of $310,794.00 resulting in a net loss for 1982 of $61,710.00. Included in the $249,084.00 figure for total cash income is $18,695 in non-farm income. Thus, the Conns had a net farm loss of $80,675.00 for 1982.
While on the witness stand Ed Stanley claimed that the Conns would have had a positive cash flow in 1982 if they had chosen to sell their 1981 crops in 1982 rather than store their 1981 crops. However, on their application for FHA services, the Conns stated that they had sold crops in 1982 for $203,536.00. Furthermore, as part of their FHA application the Conns listed their "Plan for 1983" in which they stated they planned to receive $213,905.00 from the sale of crops, presumably their 1982 crops. Clearly, the Conns sold crops in 1982 for $203,536.00 and even with this crop income the Conns still suffered an overall net loss of $61,710.00.
Further, the Conns did not have the resources to service their debt in 1983. On their FHA application, in the section entitled "Summary of Year's Business", the Conns listed their planned income and expenses for 1983. This plan showed a total cash farm income of $233,598.00, and cash farm operating expenses of $133,355.00, for a net cash farm income of $100,243.00. The Conns also planned to have $20,000.00 of non-farm income and $12,000.00 in cash family living expenses. As such, the Conns expected to have a net cash income of $103,243.00 for 1983. However, in 1983 the Conn's projected debt repayment totaled $198,352.00. Thus, by the Conns own projections for 1983 they did not have the ability to service their existing debt. In fact, the FHA, known as "the lender of last resort", denied the Conn's application for their requested loan. Several witnesses for the defendants testified that the Conns could have met their debt obligations in 1983 if the FHA had approved their loan request and granted the Conns an extended repayment period. Nevertheless, the evidence clearly shows that as of March 31, 1983, the Conns were not in a position to take on any more debt and thus a reasonably prudent banker would not have participated in any further loans to the Conns.
The defendants submitted exhibits showing that the loans were secured by two security agreements, both dated June 3, 1983, giving the Allen County Bank a security interest in all growing or planted crops on the real estate farmed by the Conns. Further, the Allen County Bank had a security interest in a 1978 combine and a 1978 tractor, which defendants assert had a combined value of $45,000.00. Defendants claim that at the time the Allen County Bank participated in the Conn loans, the security interests in the Conn's crops and equipment had already been perfected by Leiters Ford State Bank for the benefit of itself and the participants.
However, in order to enable the Conns to obtain credit to purchase seed, fertilizer, etc. each year, the Allen County Bank subordinated its liens on each year's crops to the input lenders. Thus, on each year's crop sale, the input lenders were paid off first, leaving very little to secure the Allen County Bank's interest. The equity in the crops was gradually loaned up by the cost of keeping the Conns in business. When the Conns took bankruptcy, the only collateral securing the Allen County Bank's interest was the tractor and the combine. Ultimately, there is to be a $9,000 payout to the FDIC over ten years from the Conn bankruptcy.
DEVRIES HOG AND GRAIN FARM, INC.
Sidney DeVries owned and operated DeVries Hog & Grain Farms, Inc. and also owned and operated DeVries Trucking, Inc. Sidney Devries resides in Rochester, Indiana and his farm was located in Fulton County, Indiana. DeVries Hog & Grain *1297 Farm was incorporated on April 17, 1979 and was a major customer at Leiters Ford State Bank throughout the early 1980's. During this time the Leiters Ford State Bank sold many of DeVries' loans to the LaSalle National Bank in Chicago as participation loans. However, in 1983 LaSalle refused to buy any more participations in DeVries' loans. On February 24, 1983, Sidney DeVries applied for a Farmers Home Administration guaranteed loan in the amount of $500,000. The loan application was signed by Allen Chesser, Executive Vice President of the Leiters Ford State Bank who stated that he "does not believe the needed financing can be provided by the applicant from his or its own resources or obtained by him from other sources at rates and terms he or it could reasonably be expected to meet without an FmHA guarantee."
On March 24, 1983, the Allen County Bank purchased a $70,000 note from the Leiters Ford State Bank. A review of the Exhibits reveals that on March 29, 1980, Sidney DeVries granted to the Leiters Ford State Bank a security interest in all livestock, crops, and machinery and equipment owned and hereafter acquired by him. However, on April 4, 1980, February 6, 1981, March 12, 1981, March 13, 1981, March 17, 1981, March 27, 1981, April 8, 1981, April 16, 1981, May 27, 1981 and June 11, 1981, the LaSalle National Bank agreed to participate in loans to DeVries Hog & Grain Farm, Inc., which loans were made by the Leiters Ford State Bank. Each of the participation certificates were signed by officers of both banks and stated that the loan in which LaSalle was participating was adequately secured by the security agreement dated March 29, 1980. Clearly then, LaSalle had a prior interest in the collateral pledged in the March 19, 1980 security agreement rendering Leiters Ford State Banks' March 24, 1983 $70,000 loan to DeVries Hog & Grain Farm, Inc. unsecured for all practical purposes.
A March 9, 1982 security agreement signed by Sid DeVries pledged all livestock, all 1982 crops, and all farm equipment to the Leiters Ford State Bank as security for a $100,000 loan. Yet, on May 27, 1982, the LaSalle National Bank was given as security all the collateral listed on the March 9, 1982 security agreement. Thus, Allen County Bank's March 24, 1983 loan was again unsecured. On February 1, 1983, DeVries entered into a security agreement purporting to pledge all 1983 crops to the Leiters Ford State Bank. However, all crops had already been pledged to LaSalle National Bank in 1980 and 1981 as part of LaSalle's participation agreements with Leiters Ford State Bank. Thus, this security agreement did not provide adequate security for the Allen County Bank's loan.
Although the defendants claimed that Allen County Bank's $70,000 loan was secured by two separate indemnifying mortgages, dated March 29, 1980 and July 14, 1982, Exhibit ABX. Exhibit ABX consists of one indemnifying mortgage, dated March 29, 1980, wherein DeVries Hog & Grain Farm, Inc. mortgaged farm property to Leiters Ford State Bank in exchange for a $500,000 line of credit. However, this mortgage also secures twelve of LaSalle's 1980 and 1981 participation loans. Consequently, this mortgage did not sufficiently secure Allen County Bank's loan.
On April 11, 1983, the Allen County Bank purchased, in full, a $40,000 loan to DeVries Hog & Grain Farm, Inc. from the Leiters Ford State Bank. Defendants again claim that the loan was secured by the March 9, 1982 security agreement and two indemnifying mortgages dated March 29, 1980 and July 14, 1982. As noted above in conjunction with the $70,000 loan, all of the collateral secured by the March 9, 1980 security agreement and the March 29, 1980 mortgage was previously pledged to LaSalle National Bank.
Defendants also claim that this loan was secured by a security agreement dated March 1, 1983 which pledged as security Sidney DeVries' bean hedge account, a futures contract issued by Heinhold Commodities, Inc., a Chicago, Illinois brokerage firm. Exhibit ABS does indicate that the hedge account was pledged to the Leiters Ford State Bank as collateral. However there is no evidence in the record which would show that this hedge account, speculative *1298 by nature, was ever of any value. Finally, Exhibit AAH shows that this loan was personally guaranteed by Sidney DeVries.
On June 14, 1983, the Allen County Bank participated in a $35,000 loan to Sidney DeVries from Leiters Ford State Bank. Of the original loan amount of $35,000, the Allen County Bank participated in $34,000 and the Leiters Ford State Bank retained $1,000. Defendants claim that this loan was secured by the two indemnifying mortgages dated March 29, 1980 and July 14, 1982, and by four security agreements whereby Sidney DeVries pledged all crops, machinery, equipment, and livestock, as well as his hedge account. However, as noted above, all of this collateral was already pledged to LaSalle National Bank and did not adequately secure the Allen County Bank's interest in the $34,000 participation loan.
By entering into the three DeVries transactions, the Allen County Bank extended credit in the amount of $144,000, or nearly 10% of the bank's sound capital, to Sidney DeVries and DeVries Hog & Grain Farm, Inc. In these three transactions, Leiters Ford State Bank risked only $1,000 of its own money, but risked $144,000 of the Allen County Bank's money. Yet Leiters Ford State Bank retained all rights to control the terms of the loans and, unlike its participations with LaSalle National Bank, Leiters Ford State Bank did not give the Allen County Bank's participations any warranties as to whether the security interest in the pledged collateral was valid and prior to other loans. Furthermore, the sale of these loans to the Allen County Bank violated 12 U.S.C. § 371c(a)(3), which prohibits the sale of classified substandard loans to an affiliate[15].
Reviewing all the evidence, it becomes clear that at least as early as February 1983, Sidney DeVries and DeVries Hog & Grain Farm were facing severe financial difficulties. DeVries had failed to obtain a loan from the FmHA and LaSalle National Bank had refused to participate in any further loans to DeVries. Nevertheless, in March, April, and June of 1983, the Allen County Bank purchased three of DeVries' loans from the Leiters Ford State Bank. Not only were the borrowers in financial trouble, they were unable to give the Allen County Bank any new collateral for those loans and merely gave the Allen County Bank collateral to which the LaSalle National Bank had a prior secured interest. Consequently, the court finds that a reasonably prudent banker would not have purchased or participated in any of the three loans to DeVries or DeVries Hog & Grain Farm, Inc.
LEONARD AND EILEEN DIAMOND
Leonard Diamond was a dairy and grain farmer in Steuben County, Indiana. On April 21, 1983, the Counting House Bank made a loan to Leonard Diamond and his wife, Eileen Diamond, in the amount of $248,791.69, at 16% interest, to be repaid over a period of 54 months. On April 25, 1983, the Allen County Bank participated in this loan in the amount of $41,465.28. The loan to the Diamonds was primarily a debt restructuring loan.
*1299 The loan agreement shows closing costs of $39,100, which is over 15% of the total loan amount, and there was a credit life premium of $7,868.65. The closing costs and the credit life premium were financed as part of the loan, were paid directly to the Counting House Bank, and were not shared with the participating banks. Also, a finder's fee of $11,483 was paid to Mr. George Barger, who received the appraisal of Diamond's real estate on behalf of Counting House Bank.
Prior to participating in this loan, Mr. Diamond and his farm and dairy operation were thoroughly investigated by the Allen County Bank. The Allen County Bank reviewed Mr. Diamond's milk production records, which reflected good production from his prior farm, and also determined that there was equity in Mr. Diamond's equipment and at least $138,000 equity in his farm land.
Furthermore, the Allen County Bank allegedly received substantial documentation on the Diamonds' financial condition prior to participating in this loan. Specifically, a letter was sent to the Allen County Bank from Counting House Bank setting forth the terms of the participation offer, including information on collateral. The letter contained the following documentation: a copy of the original note, a copy of the loan agreement, a copy of the farm security agreement, a copy of the Hastings Mutual Property Insurance, a copy of the indemnifying mortgage and Schedule A, a copy of the commitment for title insurance, a copy of the appraiser's statement and appraisal, a copy of the plat mat, a copy of the farmer's financial statement on Leonard and Eileen Diamond, copies of 1978, 1979, 1980, and 1981 tax returns, a copy of the credit bureau report on the Diamonds, a copy of the UCC-1 filings in Steuben County, and a copy of the UCC-1A filing in Steuben County on the Diamonds' fixtures. The letter provided further that copies of the final title insurance, recorded indemnifying mortgage, the recorded UCC-1s, and insurance would be forwarded to the Allen County Bank.
As for the collateral, the loan was secured by an irrevocable dairy assignment with County Line Cheese and that pursuant to this Agreement, the loan payments were to be made directly to the Bank by the dairy. Furthermore, the loan was also secured by all of the Diamonds' equipment, livestock, crops, accounts and contract rights. The Diamonds gave a loan guarantee to the Bank on January 1, 1984, and the loan was also secured by an indemnifying mortgage dated April 21, 1983, and recorded on May 2, 1983.
A review of the evidence pertaining to the Diamonds' financial history reveals the following. The Diamonds' federal income tax returns for the years 1978, 1979, 1980, and 1981 showed a net farm loss of $1420, $1496, $9758, and $52,030, respectively. The Diamonds' farmer's financial statement as of April 21, 1983 showed a net worth of $121,028.31 and total liabilities of $451,671.69, giving the Diamonds a debt-to-net worth ratio of 3.73 to 1. Using an independent appraisers value of the Diamonds' real estate, $302,000, rather than the Diamonds' self-reported amount, $350,000, the Diamonds' debt-to net worth ratio equaled 6.18 to 1. After studying the Diamonds' tax returns and financial statement, and acknowledging that the Diamonds were seeking a large loan in order to restructure their current debt, Mr. Don Imel, an FDIC Bank Examiner, testified that he did not think an "individual under these circumstances could obtain credit anywhere."
Although the Diamonds did not appear to be in completely sound financial health, they did own and operate a large farm, which they had recently acquired, and had considerable assets which they put up as collateral for this loan[16]. The value of this *1300 collateral, as late as September 18, 1984, was as follows. A junior lien on 175 acres of land with equity of about $151,000, 29 head of milk cows valued at $29,000, machinery and equipment valued at $73,000, and 1984 crops valued at $106,000. A January 14, 1984 FDIC Examination Report of the Allen County Bank stated that the collateral was "valued at $310M by bank management during the examination." A September 18, 1984 FDIC Examination Report of the Counting House Bank noted that collateral appeared to be "ample". The FDIC Examination Reports also state that Mr. Diamond had suffered severe cash flow problems in 1983 due to a drought which reduced his crop yields and forced him to buy feed for the dairy herd. Mr. Diamond incurred further problems due to the fact that he received diseased cows under a leasing program[17]. The diseased cows cost Mr. Diamond approximately $1 per 100 pounds of milk produced. Additionally, three lawsuits had been filed against Mr. Diamond.
From April 21, 1983 to January 17, 1984 Mr. Diamond reduced his Allen County Bank loan balance from $41,465.28 to $37,791.47. However, Mr. Diamond filed Chapter 11 bankruptcy in February of 1984 which was converted to a Chapter 7 bankruptcy in August of 1985, after Mr. Diamond abandoned his farm and moved out of the area. On October 17, 1986 the Counting House Bank acquired the Diamonds' 175 acre dairy farm via a Sheriff's Deed. An independent appraisal of the property on October 15, 1986 valued the property at $184,000. This appraised value less the allotted five percent sales commission left $175,000 of available collateral. Since the Counting House Bank acquired the property at a Sheriff's sale, the Bank obtained a priority lien on the entire 175 acres of land despite the pro rata participations. The total balance outstanding on the Diamond loan to Counting House Bank was $173,000, which left the participating banks without any collateral. In September of 1988, the FDIC sold the Allen County Bank's portion of the Diamond loan in a bulk sale. The pro rata sale price of the Diamond loan was $1,418.76.
After reviewing all the evidence presented to the court, the court finds that the defendants were not negligent in purchasing a participation in the Diamond loan. The defendants had investigated Diamond's financial history prior to entering into the participation agreement. Although participating in the Diamond loan entailed a degree of risk due to Diamond's recent losses, the court finds that the defendants' act of exposing the Bank to this degree of risk on a relatively small participation loan did not constitute negligence. Although Mr. Diamond filed bankruptcy and the Allen County Bank and the FDIC suffered a loss, in this instance it is clear that many of Mr. Diamonds' cash flow problems were the *1301 result of a drought that diminished his crop yield and the receipt of diseased milk cows, neither of which could have been foreseen by the defendants in April of 1983 when the loan was participated in. Likewise, the defendants could not have foreseen that Mr. Diamond, after suffering marital problems as well as financial problems, would misappropriate much of the collateral[18] and then abandon his farm, leaving it in the Bank's hands. Thus, the court finds that at the time the Diamond loan was participated in it was a quality banking asset.
M & M DESIGNERS, INC.
Charles H. Merry and Gerry Merry, husband and wife, were the president and vice-president, respectively, of M & M Designers, Inc. On March 11, 1982 the Leiters Ford State Bank made a loan to M & M Designers, Inc. in the amount of $265,000.00. The loan was guaranteed by Ray Maggard, Nancy Maggard (Ray's wife), Charles H. Merry and Gerry Merry. The purpose of the loan was identified as "building expenses". M & M Designers, Inc. sought to construct and operate a "steakhouse" type restaurant in Rochester, Indiana.
The contemplated restaurant was quickly constructed, and on or about May 24, 1982, Mr. and Mrs. Merry of Merry Enterprises, Inc. began operating the Country Rib and Steak Barn. The Merrys were unable to meet all of their financial obligations and on June 9, 1982 the loan to M & M Designers was rewritten for an increased amount of $319,770.00. Nevertheless, the Merrys were still unable to recover a profit on the restaurant and as of August 31, 1982 the restaurant had lost $21,786.00. On September 3, 1982 the Allen County Bank participated in the June 9, 1982 loan. The Allen County Bank's total participation was $125,000.00.
Although the restaurant building was a completely new structure, the Merrys soon began noticing that the building had been defectively constructed. As a result, Mr. Merry became involved in litigation with the contractor, Maggard Construction Company, and refused to pay to Leiters Ford State Bank any further payments on the loan. Consequently, in early 1983 Leiters Ford State Bank began trying to find a buyer for the Merrys' restaurant.
On April 1, 1983 Edwin E. Lucas and Janice A. Cooper entered into an agreement with the Leiters Ford State Bank, M & M Designers, Inc., and Charles and Gerry Merry. This agreement provided that Lucas and Cooper would purchase the restaurant from M & M Designers, Inc. on a land contract for $400,000.00[19]. Lucas and Cooper were to pay M & M Designers, Inc. $10,000.00 on or before the date of closing and the principal balance of $390,000.00 was to be paid in monthly installments. Lucas and Cooper did not take out a loan to pay Mr. Merry for the property. And Lucas and Cooper did not assume Mr. Merry's original loan with Leiters Ford State Bank. Lucas and Cooper merely entered into a contract to purchase the property over a 20 year term. Mr. Merry then refinanced his M & M Designers loan with Leiters Ford State Bank for the larger amount. The record shows that on April 1, 1983, the original loan to M & M Designers, Inc. was rewritten for an increased amount of $383,528.60. On April 18, 1983 the Allen County Bank participated in this loan. The Allen County Bank's total participation was for $130,082.00.
Although the land contract provided that Lucas and Cooper were to make monthly payments of $3763.58 for two years, then increased payments thereafter, Lucas and Cooper made only sporadic payments for a short period of time before they both declared *1302 bankruptcy. Lucas and Cooper essentially abandoned the restaurant which remained empty for over a year. On July 10, 1987 the Leiters Ford State Bank sold the restaurant to Margaret Covington Doran for $340,000.00. Since the restaurant had been closed for some time, Doran found it necessary to remodel the restaurant before it could be re-opened. To assist Doran in her efforts to make the restaurant a success, Ed Stanley agreed that Doran would not be required to make any payments on the restaurant loan until she had the restaurant fixed up and started making a profit. Nevertheless, even after remodeling the restaurant, Doran suffered losses of approximately $1,000.00 a month. In 1987 the Leiters Ford State Bank and the Counting House Bank merged to form Liberty Bank and Trust. Liberty Bank and Trust closed in October of 1988. The FDIC, as receiver of Liberty Bank and Trust, became the owner of the restaurant.
A review of the evidence indicates that the Leiters Ford State Bank undertook a fairly extensive investigation of Mr. Merry and his proposed business venture prior to making this loan. Mr. Merry's letters of recommendation indicate that he was a well respected business man who met his credit obligations in an exceptional manner, Merry's resume shows that he has spent most of his life in the food industry and repeatedly found success in managing restaurants and other small businesses. Merry's financial statement, dated July 13, 1981, showed that he had a net worth of $259,100.00. Projected monthly sales for the proposed restaurant were $40,000.00 with an expected net profit of $12,320.00[20]. In light of this evidence, the court finds that the Leiters Ford State Bank adequately investigated the borrower and thus the defendants did not, as plaintiff claims, participate in a loan that had not been investigated.
The original loan agreement, dated March 11, 1982, indicates that the loan was secured by a Security Agreement dated March 11, 1982 listing four indemnifying mortgages dated March 11, 1982 as security for the loan. On June 9, 1982, in conjunction with the re-writing of M & M Designers original loan, Leiters Ford State Bank likewise received four indemnifying mortgages on the Merrys' four parcels of real estate. Title searches and loan opinions indicate that Leiters Ford State Bank received a first or second mortgage on the subject properties.
Although Leiters Ford State Bank requested that Mr. Merry obtain $135,000.00 worth of credit life insurance, Mr. Merry was able to obtain only $100,000.00 worth of insurance. However, the Merrys did obtain home owners insurance on the residences on which Leiters Ford State Bank was named as mortgagee. Furthermore, on June 9, 1982 Charles Merry and Gerry Merry each executed a loan guaranty agreement in which they personally guaranteed the Leiters Ford State Bank loan to the extent of $319,770.00. The evidence also shows that the Leiters Ford State Bank acquired a security interest in all restaurant equipment now owned and hereafter acquired by M & M Designers, Inc. On September 7, 1982 the Leiters Ford State Bank filed UCCs with the Secretary of State and the Recorder of Fulton County. Accordingly, the court finds that the loan, both as originally written and as subsequently re-written, was adequately secured.
After reviewing all of the evidence, the court finds that as of September 3, 1982, the date the Allen County Bank participated in M & M Designers' original loan, the loan was a quality banking asset and the defendants did not breach any duty by allowing the Allen County Bank to enter into the participation agreement with the Leiters Ford State Bank. The record clearly shows that Mr. Merry was an astute businessman and that he had a substantial net worth. The court accepts as true Mr. Ed Stanley's testimony that the banks requested and received a feasibility study which showed that the contemplated restaurant would be successful. The loan was *1303 secured by indemnifying mortgages, credit life insurance, and security agreements. Although the restaurant was not making a profit on the date the Allen County Bank entered into the September 2, 1982 participation agreement, the evidence is clear that early losses are common for a new business, particularly in a case such as this where there exists high rent expense resulting from construction costs. The FDIC has not shown by a preponderance of the evidence that the defendants breached their duties as directors of the Allen County Bank by entering into the September 2, 1982 participation agreement.
With respect to the Allen County Bank's April 1, 1983 participation in M & M Designers' re-written loan, the court finds that the defendants did not breach their duties as directors. Although the restaurant had encountered financial difficulties in late 1982 and early 1983, these difficulties appear to have been brought on primarily by the poor construction of the restaurant and Mr. Merrys refusal to continue making payments. While the FDIC contends that the sale of the restaurant to Lucas and Cooper was improper, the FDIC has not proven this contention. There is no evidence in the record which would show that the Allen County Bank would have been in a better position if Leiters Ford State Bank had foreclosed on the restaurant. The mere fact that Lucas and Cooper did not assume M & M Designers' original loan and that this loan was refinanced does not establish that the defendants acted improperly when they allowed the Allen County Bank to participate in the refinanced loan. Consequently, the defendants are not liable for the losses suffered as a result of Allen County Bank's participations in the loans to M & M Designers, Inc.
PINKERTON FARMS, INC.
James and Mona Pinkerton operated Pinkerton Farms, Inc., a hog farm located in Warren, Indiana. The Pinkerton's also owned and operated Pinkerton Farm Commodities, Inc., a wholly-owned subsidiary of Pinkerton Farms, Inc. On April 27, 1983, the Leiters Ford State Bank loaned Pinkerton Farms $361,000.00. On May 26, 1983, the Allen County Bank participated in the Pinkerton loan to the extent of $120,179.52. The note was due on demand, or when all present and future inventories were liquidated, with accrued interest due and payable semi-annually beginning on October 27, 1983. The participation certificate issued to Allen County Bank lists the security as all swine, all 1982 corn, and all crops for 1983.
However, the total value of the collateral taken to secure this loan was $912,422.70. The value of the hogs pledged on this note on April 27, 1983 was $405,650.00. The note was also secured by all 1982 soybeans which had a value of $105,000.00. As additional security for the loan, the bank also took an interest in the Pinkerton's 1983 crops which included corn, wheat and soybeans valued at $411,772.70. The lead bank obtained personal guarantees from James and Mona Pinkerton. On April 27, 1983, James and Mona Pinkerton had a net worth of $1,249,000.00. Pinkerton Farm's financial statement, dated November, 1982 showed equity in the amount of $1,173,000.00.
The Pinkerton's projected cash flow for 1983 for the commodities business was $65,727.00 and for the farming operation was $203,220.00. For every year from 1983 through 1988, current UCCs were filed on all crops and all hogs owned by the Pinkerton entities with both the Secretary of State's Office and the Huntington County Recorder. Allen County Bank's position on this loan was further protected because Leiters Ford State Bank, for its benefit and the participants' benefit, required insurance on the hogs and stored grain with Leiters Ford State Bank being designated as the loss payee. Leiters Ford State Bank for its benefit and the benefit of its participants, including Allen County Bank, required James Pinkerton to carry insurance on his life with Leiters Ford State Bank being the beneficiary.
Allen County Bank's interest was protected because the Pinkertons were required in 1983, 1984, and 1985, to provide *1304 the Bank with the identity of livestock dealers to whom they could have sold their hogs as well as grain elevators at which they could have sold their crops. Once this information was obtained from the Pinkertons, the potential purchasers were put on notice of Leiters Ford State Bank's lien. The bank also required the Pinkertons to provide it with reports so it could monitor the hog inventory. The Allen County Bank's interest was also protected by Pinkerton Farm's large ownership interest in real estate. In August of 1982 this real estate had a substantiated equity figure of $1.6 million.
The character of James Pinkerton was well-known by the Allen County Board of Directors at the time they participated in this loan. Mr. Ed Stanley had known James Pinkerton for thirty-five years, and James Pinkerton's wife, Mona, is Ed Stanley's cousin. James Pinkerton was known as a high-quality farmer who had a very well established farm. It is undisputed that Pinkerton Farms was extremely well organized and managed.
Pinkerton has never paid any principal on the loan. However, Leiters Ford State Bank never demanded payment on the note nor did its successor, Liberty Bank and Trust. As a participant, the Allen County Bank, and subsequently the FDIC, did not have standing to make a demand on the debtor. Pinkerton defaulted on interest payments in April 1986 and again in October 1987. Pinkerton has paid interest through 1988. In 1988, Pinkerton Farms refinanced its debts through a loan from Summit Bank. Also, in April, 1988, Pinkerton and Liberty Bank signed a commitment letter to refinance Pinkerton Farm's debts. This was a ten-year payout plan that provided for an annual principal reduction of the Allen County Bank participation loan.
This agreement was supported by collateral including a mortgage dated April 15, 1988 on Pinkerton Farm Commodity, Inc.'s property. As further security for the agreement, on April 15, 1988, a first mortgage was taken on 2.79 acres of Pinkerton Farm, Inc., which acreage is highly improved with an elaborate hog barn operation. In April, 1988, Liberty Bank and Trust Company also took a security interest in numerous vehicles owned by Pinkerton Farm Commodities, Inc., Pinkerton Farm, Inc., James and Mona Pinkerton, and Dan Pinkerton. Liberty Bank also took a security interest in all farm machinery owned by the Pinkerton entities. Liberty Bank took a first interest in rolling stock semi-tractor trailers. After the FDIC was appointed receiver of the bank, it filed UCCs to perfect the collateral taken by Liberty Bank pursuant to the 1988 agreement.
After reviewing all of the evidence, the court concludes that as of May 26, 1983, the date the Allen County Bank participated in the Pinkerton Farm, Inc. loan, the loan was a quality banking asset and the defendants did not breach any duty by allowing the Allen County Bank to enter into the participation agreement with the Leiters Ford State Bank. The record clearly shows that the Pinkertons were outstanding farmers as well as astute business people who had a substantial net worth. The loan was adequately secured by hogs, crops, and the personal guarantees of the farm's operators. The collateral was inventoried and potential purchasers of the collateral were put on notice of Leiters Ford State Bank's lien. The FDIC has not shown by a preponderance of the evidence that the defendants breached their duties as directors of the Allen County Bank by entering into the May 26, 1983 participation agreement.
POWELL IMPLEMENTS, INC.
In 1982, the Leiters Ford State Bank loaned Richard Powell $120,000.00 to set up an implement business in Kewanna, Indiana. For the ten months ending January 31, 1983, Powell Implement, Inc. showed an operating loss of $36,440.00. In April 1983 the Powell loan was increased to $281,974.88, which was to be repaid at $4,000.00 a month at 12 percent interest. Allen County Bank participated in this loan in the amount of $90,000.00. In April 1984, the Powell loan was rewritten for $277,763.55, of which Allen County Bank received *1305 a participation of $89,113.29. Powell's monthly payment was increased from $4,000 per month to $5,573.96 per month.
When the Leiters Ford State Bank made this loan, the collateral securing the loan included the property of Powell Implement, Inc. valued at $167,282.00. This security included: a first mortgage on the Powell Implement, Inc. building and land and two nearby lots which had an appraised value of $58,500.00; a first lien on the Powell Implement, Inc. truck and trailer which had a value of $16,000.00; machinery, equipment and tools valued at $20,182.00; a first lien on the parts inventory purchased by Powell Implement, Inc. valued at $72,000. The bank also took a first lien on Powell Implement, Inc.'s accounts receivable which had potential future value.
Richard Powell and his wife, Tammy, both signed personal guaranties. The Powells pledged as collateral for this loan equity in their farm land which at the time the loan was participated in by the Allen County Bank had a value in the range of $250,011.00 to $300,000.00. The Powells also pledged their personal farm equipment which had no liens and had a value of $133,000.00.
Leiters Ford State Bank, for the benefit of itself and all participants, went to great lengths to perfect the bank's security interests in all items of collateral. The Bank filed UCCs on virtually everything owned by the Powells individually and by Powell Implement, Inc. The Bank also investigated its collateral position in the Powell real estate by obtaining title opinions based on title searches performed by Attorney Alan Burke.
Based on the evidence submitted to the court, the court concludes that there was no breach of duty by the defendants with regard to the initial decision to participate in this loan in April 1983 or with regard to the decision to participate in the loan as rewritten in April 1984. There was extensive investigation and documentation of this loan prior to the participation. The Leiters Ford State Bank required Powell Implement, Inc. to submit business plans and sale projections. Mr. Powell provided the Bank with a prospectus and a survey of the potential market share which he obtained from International Harvester. The market share survey was favorable. Further investigation revealed that there was an established market for an implement business in Kewanna, Indiana as illustrated by the success of the prior implement dealer in Kewanna. The defendants had personal knowledge of the success of the prior owner, Mr. Sydell, as he had been a long time customer of Leiters Ford State Bank. There was no indication that the implement market was about to change.
Many events unforeseen to Mr. Powell and the lending banks occurred between 1982 and 1986 which caused Powell's implement business to default on its loan. The 1983 drought adversely affected implement sales and the drought was not foreseeable to Powell when he entered into the implement business. In 1984 International Harvester filed for bankruptcy which harmed Powell Implement, Inc.'s business by adversely affecting customer confidence. Mr. Powell did not foresee the 1984 bankruptcy of International Harvester when he opened the business. In the years between 1982 and 1986, farm real estate values dropped and farm sales resulting from foreclosures were frequent. These factors, combined with high interest rates, greatly depressed the farm implement market. Consequently, the court finds that the defendants are not liable for the losses suffered as a result of Allen County Bank's participations in the loans to Powell Implement, Inc.
CONCLUSIONS OF LAW
This court has jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1345, and 12 U.S.C. § 1819. Jurisdiction over the parties is conceded by counsel.
The FDIC's complaint against the defendants as directors and/or officers of the Allen County Bank is in four counts: (1) breach of fiduciary duties of loyalty, good faith, and avoidance of self-dealing, in the management, supervision, and direction of the Bank; (2) breach of common law and statutory duties including the duties of *1306 good faith and the exercise of reasonable skill, due care, and diligence in the management, supervision, and direction of the Bank; (3) violation of bank lending limits, I.C. XX-X-XX-X; and (4) breach of contract (oath of office) to render services as directors and/or officers honestly, diligently, and faithfully, and to not knowingly or willingly permit any of the banking laws of the State of Indiana to be violated.
As a preliminary matter, the FDIC has raised the issue as to whether the court should consider evidence "purporting to diminish the FDIC's right of recovery by virtue of decisions made by it in connection with the collection of the assets" of the Allen County Bank. FDIC v. Greenwood, 719 F. Supp. 749, 751 (C.D.Ill.1989).
Since acquiring the Allen County Bank assets, FDIC has sold the Abbott Coal and Leonard Diamond loans. FDIC's claim on the Carper loan was settled during Carper's bankruptcy proceeding. The remaining loans (Conn, DeVries, M & M Designers, Pinkerton, and Powell) are still held by the FDIC. Defendants contend that the FDIC has negligently failed to maximize its recovery on these loans, and that therefore the defendants' actions have not proximately caused any losses to the FDIC.
In FDIC v. Greenwood, supra, the defendants wished to introduce evidence at trial that there were sources of repayment for loans which the FDIC sold as part of a bulk sale. The Court, relying on FSLIC v. Roy, 1988 WESTLAW 96570 (D.Md.1988), and FDIC v. Carlson, 698 F. Supp. 178 (D.Minn.1988), granted FDIC's motion in limine to exclude the evidence, holding that:
Public policy concerns mandate a finding that the duty of FDIC to collect on assets of a failed institution runs to the public and not to the former officers and directors of the failed institution. Thus, the decision of the FDIC that it would be more cost effective to sell certain loans as part of a bulk sale rather than incur the considerable expense involved in collecting certain assets cannot be the basis of reduction of FDIC's claims.
719 F.Supp. at 750.
The "public policy concerns" mentioned in Greenwood and Roy are discussed at greater length in FSLIC v. Burdette, 718 F. Supp. 649 (E.D.Tenn.1989). The Court first noted that "the FSLIC or the FDIC, when attempting to collect the assets of a failed or failing banking institution, are to be treated differently than a typical plaintiff in a civil case." 718 F. Supp. at 662. After discussing the opinions in Roy, Carlson, and Greenwood, the Court explained the public policy reasons for barring directors and officers from second-guessing the FSLIC's collection efforts:
Suits by the FSLIC as a receiver to recover assets, or to recover damages for wrongdoing, should not be encumbered by an examination in court of the correctness of any specific act of the FSLIC in its receivership. The rule that there is no duty owed to the institution or wrongdoers by the FSLIC/Receiver is simply a means of expressing the broad public policy that the banking laws creating the FSLIC and prescribing its duties are directed to the public good, and that every separate act of the FSLIC as a receiver in collecting assets is not open to second guessing in actions to recover damages from wrongdoing directors and officers. If there is no wrongdoing by the officer or director, there can be no liability, but if wrongdoing is established, the officer or director should not be allowed to set up as a defense a claim that would permit the detailed examination of the FSLIC's action as a receiver.
When an individual becomes an officer or director of a savings and loan, they are aware that if that institution becomes insolvent, federal banking laws and regulations require that a receiver be appointed, often the FSLIC, to marshal the institution's assets as promptly as possible to avoid further injury to the insurance fund and the public at large. The special urgency required in the liquidation of a savings and loan, and a commercial bank, is a result of the special nature of the insurance fund and the procedure for *1307 collection and disbursements of assets as provided by Congress. This is a fact any officer or director of that institution should be aware of. Consequently, a director or officer of a failed savings and loan accused of wrongdoing should not be entitled, and should not be surprised by an inability, to examine the conduct of a receiver of a failed institution in an attempt to reduce the recovery of the receiver in subsequent civil actions by the receiver.
As a result, the court believes that the cases cited above are soundly decided and applicable to the instant case. The affirmative defenses at issue should be struck, as these defenses would require the public to bear the possible errors of judgment by the FSLIC as receiver rather than the persons found to be guilty of wrongdoing, and removing these defenses will help the court and the jury focus on the real issues presented in the pleadings. To hold otherwise would invite a flood of evidence as to every FSLIC discretionary decision concerning the collection of Knox assets, and could easily distract the jury from making the primary determination of liability or the lack thereof of the defendant officers and directors.
718 F.Supp. at 663-64. See also FDIC v. Coble, 720 F. Supp. 748 (E.D.Mo.1989).
In Vogel v. Grissom, Civ.Act. No. Ca3-89-0467-D (N.D.Tex., 9/7/89), the Court held that under the Federal Tort Claims Act, the FDIC exercises its "discretionary function" when it disposes of the assets of an insolvent bank, and it therefore cannot be held liable for such activities. The Court concluded that any attempt by it "to impose its economic knowledge on the FDIC is precisely the kind of `judicial second-guessing' against which the discretionary function exception was designed to protect." Id. at 10.
Similarly, in FDIC v. Oakes, Civ.Act. No. 89-2261-S, 1989 WL 151954 (N.D.Kan. 1989), the Court stated:
In their responses to FDIC's motion, defendants appear to concede that under established case law, FDIC owes no duty to bank directors and officers for pre-bank closing activities. Without a duty of care, there can be no finding of negligence. Thus, no affirmative defenses or counterclaims based upon FDIC's activities may be asserted against FDIC by bank directors or officers under theories of comparative/contributory negligence or breach of fiduciary duty (hereafter referred to as the "no duty rule"). First State Bank of Hudson County v. United States, 599 F.2d 558, 561-66 (3d Cir. 1979), cert. denied, 444 U.S. 1013, [100 S. Ct. 662, 62 L. Ed. 2d 642] (1980); Harmsen v. Smith, 586 F.2d 156, 158 (9th Cir.1978); FSLIC v. Burdette, 696 F. Supp. 1183, 1189 (D.Tenn.1988); FDIC v. Butcher, 660 F. Supp. 1274, 1282 (D.Tenn.1987); Niver, 685 F.Supp. [766] at 768 [(D.Kan.1987)]; FDIC v. Williams, 599 F. Supp. 1184, 1204-06 (D.Md.1984).
Defendants' responses do, however, attempt to distinguish the present case from the "no duty rule." Defendant McCartney first argues that even if FDIC owes no duty for its pre-bank closing activities, FDIC may be liable for its post-bank closing activities, as in the present case. Upon examination of this contention, the court finds no logical basis for distinguishing between pre- and post-bank closing activities of the FDIC. See FDIC v. Carlson, 698 F. Supp. 178, 179 (D.Minn.1988) (citing FSLIC v. Roy, No. JFM 87-1227 (D.Md. June 28, 1988)). At both time periods, the FDIC's duty is owed, not to bank directors, officers or even shareholders, but to the insurance fund it is charged with protecting and to the banking public. See First State Bank of Hudson County, 599 F.2d at 563; First Nat'l Bank of Scotia v. United States, 530 F. Supp. 162, 166 (D.D.C.1982).
In FDIC v. Carter, 701 F. Supp. 730 (C.D.Cal.1987), the court reached a contrary result by distinguishing between the discretionary functions and the ministerial functions of the FDIC:
The discretionary function cases distinguish between decisions grounded in social, economic, and political policy, and *1308 those which involve routine ministerial tasks of government. Thus, the government cannot be sued for failing to build a lighthouse at a specific location, but it can be sued for operating a lighthouse negligently, once it is built. Indian Towing [v. U.S.], 350 U.S. [61] at 69, 76 S.Ct. [122] at 126 [100 L. Ed. 48 (1955)]. In the banking context, the FDIC cannot be held liable for failing to warn bank officers and directors about misfeasance it discovers during a routine inspection. Further, the decision to impose a conservatorship or receivership on a troubled bank is within the discretion of the bank regulators. (Footnote and citations omitted).
However, the emerging consensus is that most of the FDIC's actions when disposing of the assets of a bank are purely ministerial, and are not grounded in social or economic policy. As a result, these actions can serve as the basis for a counterclaim or affirmative defense....
When the FDIC acts in a purely proprietary capacity, for instance when it collects routine debts and manages routine assets, it can assume a duty to a bank. As defendants correctly argue, it would be extremely inequitable if the FDIC could negligently fail to collect on a loan, and then sue the directors and officers of the bank for the loss on the loan. The Court therefore holds that with respect to such proprietary functions, the FDIC is liable to the directors and officers of a bank for its own negligence. This negligence can be the basis of either an affirmative defense or a compulsory counterclaim for recoupment.
In general, the dividing line for the FDIC's negligence liability is the date it assumes receivership of a bank. Before that time, the discretionary function exemption of the FTCA protects the FDIC from any liability for negligence in examining a bank, Hudson County, 599 F.2d at 564, or for negligence in the decision to impose or accept a receivership, [Federal Deposit Ins. Corp. v.] Jennings, 615 F.Supp. [465] at 468 [(W.D.Okl.1985)]. These are policy decisions which a court cannot second-guess. After the FDIC makes the decision to become the receiver, it can be held liable for negligently performing proprietary tasks.
701 F.Supp. at 735-37.
The Carter decision has recently been criticized in FDIC v. Baker, 739 F. Supp. 1401 (C.D.Cal.1990). In Baker, the Court discussed the impact of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) on the reasoning in Carter:
It is Carter which supports all defendants' opposition to the plaintiffs' motion to strike. Carter was premised on what was perceived as an "emerging consensus" that most of the FDIC's actions when disposing of the assets of a bank are purely ministerial and are not grounded in social or economic policy. Id. at 736. The remaining cases relied upon by defendants turn on the "proprietary" distinction as well. The FDIC challenges the validity of Carter's rationale on two fronts: first, that this premise, if ever valid, is no longer valid in light of the passage of FIRREA. Second, the current emerging trend among courts is to adopt the "no-duty" rule and eliminate the regulatory/operational distinction.
The FDIC highlights certain portions of FIRREA which emphasize substantial public policy directives for the RTC's [Resolution Trust Corporation's] disposition of the property of failed institutions. These concern maximizing of the net present value of return and avoidance of economic impact for those real estate markets that are distressed. Sections 21A(b)(3)(C)(i), (ii); 21A(b)(12)(D). The FDIC reasons, in turn, that these statutory directives signify that the FDIC is executing public policy determinations made by Congress. Thus, it acts with agency discretion and cannot be described as it responds to its duty in disposing of assets as either ministerial or purely proprietary.
The massive overhaul effected by FIRREA is, if anything, understated by the FDIC. As the introduction to an article in the American Bar Association's publication, *1309 The Business Lawyer, states, "[T]he [Act] represents a sweeping legislative effort to resolve the financial crisis confronting the thrift industry." [Fn. omitted.] Clark, Murtagh, and Corcoran, Regulation of Savings Association Under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 45 Bus.Law. 1013 (1990). The FDIC rightly relies on FIRREA as good reason to characterize the RTC's and FDIC's duties in disposing of failed institutions' assets as carrying no duty to any but the public.
739 F.Supp. at 1406.
Furthermore, on March 26, 1991 the United States Supreme Court decided United States v. Gaubert, ___ U.S. ___, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). In Gaubert the Supreme Court held that the involvement of the Federal Home Loan Bank Board in the day-to-day management of a financial institution was protected by the discretionary function exception to the Federal Tort Claims Act. In so holding, the Court rejected the Fifth Circuit's position that there is a dichotomy between discretionary functions and operational activities:
In light of our cases and their interpretation of § 2680(a), it is clear that the Court of Appeals erred in holding that the exception does not reach decisions made at the operational or management level of the bank involved in this case. A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policymaking or planning functions. Day-to-day management of banking affairs, like the management of other businesses, regularly require judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level.
111 S.Ct. at 1275.
The Supreme Court further stated:
Neither is the decision below supported by Indian Towing. There the Coast Guard had negligently failed to maintain a lighthouse by allowing the light to go out. The United States was held liable, not because the negligence occurred at the operational level but because making sure the light was operational "did not involve any permissible exercise of policy judgment." Berkovitz [by Berkovitz v. U.S.], supra, [486 U.S. 531], at 538, n. 3, 108 S.Ct. [1954], at 1959, n. 3 [100 L. Ed. 2d 531 (1988)]. Indeed the government did not even claim the benefit of the exception but unsuccessfully urged that maintaining the light was a governmental function for which it could not be liable. The Court of Appeals misinterpreted Berkovitz's reference to Indian Towing as perpetuating a nonexistent dichotomy between discretionary functions and operational activities. [Gaubert v. U.S.,] 885 F.2d [1284], at 1289 [(5th Cir. 1989)]. Consequently, once the court determined that some of the actions challenged by Gaubert occurred at an operational level, it concluded, incorrectly, that those actions must necessarily have been outside the scope of the discretionary function exception.
Id. 111 S.Ct. at 1275-76.
Thus, the holding in Gaubert overrules FDIC v. Carter insofar as Carter holds that the FDIC's actions when disposing of a bank's assets can serve as a basis for reducing the amount of the FDIC's recovery because such actions by the FDIC are ministerial or operational. Clearly, the FDIC's actions when acting as receiver of a failed bank are protected by the discretionary function exception to the Federal Tort Claims Act. Consequently, in determining the amount of the FDIC's recovery, the court will disregard evidence that was introduced in an effort to diminish the FDIC's right of recovery as a result of decisions it made in connection with the collection of the Allen County Bank's assets.
Defendants are personally liable for the damages that were caused to Allen County Bank as a result of their breaches of duty. A proximate cause of an injury is the cause which sets in motion the chain of circumstances leading up to the injury. New York Central R. Co. v. Cavinder, *1310 141 Ind.App. 42, 211 N.E.2d 502 (1965). It involves the idea of continuity in that there must be some degree of progression from the negligent act into the casual sequence which results in injury. Tabor v. Continental Baking Company, 110 Ind. App. 633, 38 N.E.2d 257 (1941). Proximate cause has been defined as that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred. Johnson v. Bender, 174 Ind.App. 638, 369 N.E.2d 936 (1977). Foreseeability of injury is regarded as an essential element or fundamental test of proximate cause. Thus, negligence will not be deemed to have been the proximate cause of injury so as to impose liability therefor, unless the consequence was one which, in the light of attending circumstances, should reasonably have been foreseen. Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966). However, the specific manner in which injury occurs or the extent of the harm need not be foreseen if it can be reasonably anticipated that conduct will cause injury in substantially the manner in which it occurs. Tabor v. Continental Baking Company, supra. Thus, if the defendant's negligence is a substantial factor in producing plaintiff's injury, and if the particular injury suffered is one of a class that was reasonably foreseeable at the time of the defendant's wrongful act, then there is causal relation in fact as well as legal cause. Johnson v. Bender, supra. Consequently, the defendants in the present case are liable for the foreseeable damages which the Allen County Bank incurred as a result of the defendants' breaches of duty while they were directors of the Allen County Bank.
At this point a discussion of the duty of care of bank directors and the general rules regarding the burden of proof in suits against bank directors is appropriate. The degree of care to which bank directors are bound is that which ordinarily prudent and diligent men would exercise under similar circumstances. Briggs v. Spaulding, 141 U.S. 132, 11 S. Ct. 924, 35 L. Ed. 662 (1891). Each case in which it is sought to charge directors with liability must be determined in view of all the circumstances of that particular case. Id. Directors are charged with the duty of reasonable supervision over the affairs of the bank. It is their duty to use ordinary diligence in ascertaining the condition of the bank's business, and to exercise reasonable control and supervision over the bank's affairs. Gallin v. National City Bank, 152 Misc. 679, 273 N.Y.S. 87 (1934). However, the directors are not insurers or guarantors of the fidelity and proper conduct of the executive officers of the bank, and they are not responsible for losses resulting from their wrongful acts or omissions, provided they have exercised ordinary care in the discharge of their own duties as directors. Id. Ordinary care means that degree of care which ordinarily prudent and diligent men would exercise under similar circumstances. Id.
Furthermore, all of the directors of a bank have a duty to be generally familiar with the business and financial condition of the bank, and to devote a sufficient amount of time and energy to overseeing the affairs of the bank to allow them to discharge their responsibilities to the depositors and shareholders. It is the duty of the directors to attend meetings of the Board of Directors and to read the reports which are made to the bank by the FDIC and state bank examiners. Bowerman v. Hamner, 250 U.S. 504, 39 S. Ct. 549, 63 L. Ed. 1113 (1919); Atherton v. Anderson, 99 F.2d 883 (6th Cir.1938); Francis v. United Jersey Bank, 87 N.J. 15, 432 A.2d 814 (1981); Neese v. Brown, 218 Tenn. 686, 405 S.W.2d 577 (1964); Kavanaugh v. Gould, 223 N.Y. 103, 119 N.E. 237 (1918); Coddington v. Canaday, 157 Ind. 243, 61 N.E. 567 (1901). Consequently, it is not a defense that the directors did not know of unsound practices of the bank, if by devoting a reasonable amount of time and energy to the affairs of the bank they would have obtained such knowledge. Likewise, a director's duty to exercise due care, skill, and diligence in overseeing the affairs of the bank cannot be met solely by relying on other persons. Each director *1311 has a non-delegable duty to the depositors and shareholders of the bank to exercise his own independent judgment, skill, care, and diligence in overseeing the affairs of the bank. Fitzpatrick v. FDIC, 765 F.2d 569 (6th Cir.1985); Kavanaugh v. Gould, 223 N.Y. 103, 119 N.E. 237 (1918); Coddington v. Canaday, 157 Ind. 243, 61 N.E. 567 (1901).
The general rule with respect to the burden of proof in suits against bank directors was clearly stated in Anderson v. Akers, 7 F. Supp. 924, 928 (W.D.Ky.1934):
It must, of course, always be borne in mind that the burden of proof rests upon the plaintiff as to each defendant and as to each of the elements necessary to a recovery of damages by the plaintiff. For example, it cannot be presumed that any of the defendant directors acted dishonestly or carelessly; that any of the loans made by this bank were, when made, or afterwards became, improper; that, because such loans eventually resulted in loss to the bank, they were improvident at the time when they were made; that, because one or more of the officers of the bank were dishonest, other officers thereof also were dishonest; or that because such an officer was dishonest, his associates knew of such dishonesty.
However, when a bank director approves a transaction between the bank and another institution in which he has an interest, the law presumes that the transaction is a breach of the director's duty of loyalty and good faith to the bank. Consequently, in such a case the burden of proof is on the director to prove that he did not breach his duty of loyalty and good faith. In order to carry that burden of proof, the director must prove that the transaction with the institution in which he has an interest was fair and reasonable to the bank. Corsicana National Bank v. Johnson, 251 U.S. 68, 40 S. Ct. 82, 64 L. Ed. 141 (1919); Lewis v. S.L. & E., Inc., 629 F.2d 764 (2d Cir. 1980); United Founders Life Ins. Co. v. Consumers National Life Ins. Co., 447 F.2d 647 (7th Cir.1971); Neese v. Brown, 218 Tenn. 686, 405 S.W.2d 577 (1964); Shlensky v. South Parkway Building Corp., 19 Ill. 2d 268, 166 N.E.2d 793 (1960); Schemmel v. Hill, 91 Ind.App. 373, 169 N.E. 678 (1930). Nevertheless, in an action against bank directors, the evidence on the issue of whether a particular transaction was fair and reasonable to the bank must be viewed in the time frame in which the directors were making their decisions. In other words, the court will not give the FDIC the benefit of hindsight. Briggs v. Spaulding, 141 U.S. 132, 11 S. Ct. 924, 35 L. Ed. 662 (1891); Gallin v. National City Bank, 152 Misc. 679, 273 N.Y.S. 87 (1934).
Having set forth these principles, the court will now determine each of the defendant's liability for the losses on the Abbott Coal lease and loan, the two Conn loans, and the three DeVries loans. All seven of the defendants were members of the Board of Directors when the Allen County Bank purchased the Abbott Coal lease and loan[21]. Ed Stanley was president of the Bank when the lease and loan were purchased. From March 1982 through May 1984, defendants Ed Stanley, Judith Stanley, and David DeHart were directors of the Leiters Ford State Bank, the Counting House Bank, and the Western State Bank, as well as the Allen County Bank. Defendant Marcuccilli, as well as being a director of the Allen County Bank, was also a director of the Counting House Bank and the Western State Bank, and was a director of Leiters Ford State Bank until January 1983. Marcuccilli was also Chairman of the Board of the Counting House Bank when the Allen County Bank purchased the Abbott Coal lease and loan. Additionally, Ed Stanley and Marcuccilli were vice-presidents of Northern Indiana Leasing.
As the court discusses the extent of the duty of care placed upon these defendants, as directors of the Allen County Bank, each defendant's status, vis-a-vis the institutions from which the respective loans and lease were purchased, will be noted. However, as will be seen below, the defendants' status *1312 as "interested" or "non-interested" directors with respect to these transactions is ultimately immaterial.
First, as to the Abbott Coal lease, Ed Stanley and Marcuccilli were both "interested directors" because they were vice-presidents of Northern Indiana Leasing when Northern Indiana Leasing sold the lease to the Allen County Bank. Thus, as to this lease, Ed Stanley and Marcuccilli bear the burden of proving that they did not breach their duty of loyalty and good faith to the Allen County Bank. The court finds that Ed Stanley and Marcuccilli did not carry their burden of proof because they did not prove that the transaction with Northern Indiana Leasing was fair and reasonable to the bank. The evidence showed that Northern Indiana Leasing had purchased the bulldozer, which was the subject of the Abbott Coal lease, for $95,500 and that Northern Indiana Leasing then sold the lease to the Allen County Bank for the net amount of $110,500. Thus, Northern Indiana Leasing "earned" a $15,000 profit on the sale of the bulldozer lease. This transaction was not fair and reasonable to the Allen County Bank and defendants Ed Stanley and Marcuccilli clearly breached their duty of loyalty and good faith.
The other defendants, Judy Stanley, Dan Stanley, David DeHart, Gilbert Bierman, and John Boley, were not "interested directors" as far as the Abbott Coal lease is concerned. However, each of these defendants was bound to exercise that degree of care which ordinarily prudent and diligent men would exercise under similar circumstances. Defendant Bierman, who last attended an Allen County Bank board meeting on October 5, 1982, vigorously argues that he "effectively resigned" on October 5, 1982. Bierman thus claims that he cannot be held liable for any loans that the Allen County Bank's Board of Directors made after October 5, 1982. Bierman's claim is unpersuasive for several reasons.
First, although Bierman did not attend any board meetings after October 5, 1982, Bierman received "committee fees" from the Allen County Bank, totalling $2,400.00, for the months of October 1982 through February 1983. Thus, the Allen County Bank paid Bierman to serve as a board member, and he was not a mere "figurehead". Second, Bierman was reelected as a board member, both on March 24, 1982 and on March 29, 1983, at the annual stockholders' meeting for those years. Clearly, if Bierman did not intend to participate as a board member during those years, he should have informed the stockholders that he did not wish to be reelected. By allowing his name to remain on the election ballot each year, Bierman permitted the stockholders to believe that he was involved in the day-to-day activities of the Bank. Third, Ed Stanley testified that if a board member "totally objected" to a loan, the board members "weren't going to cram anything down anybody's throat." This testimony evidences that if Bierman had attended board meetings and objected to the Abbott Coal loan being purchased, he could have successfully prevented the Allen County Bank from making the purchase.
Finally, Bierman's claim that he cannot be held liable for actions taken by the board of directors during the time Bierman did not attend any meetings is contrary to the case law. The law clearly establishes that a director of a bank has the duty to attend directors' meetings. Bierman, as a member of the Allen County Bank Board of Directors, had a non-delegable duty to the depositors and shareholders of the bank to exercise his own independent judgment, skill, care, and diligence in overseeing the affairs of the Bank. Consequently, the court finds that defendant Bierman is liable for the losses which the Allen County Bank suffered on the Abbott Coal lease.
Defendant John Boley attended only two board meetings from March 1982 through May 1983. Boley attended two meetings in October of 1982, and one meeting in June of 1983 at which he tendered his resignation effective June 16, 1983. Thus, insofar as Boley claims that he cannot be held liable for the losses incurred on Abbott Coal lease for the reason that he did not attend board meetings, the case law referred to above applies and Boley cannot *1313 escape liability merely because he was not involved in the Abbott Coal transactions. The court finds that defendant Boley is liable for the Bank's losses on the Abbott Coal lease.
With respect to the Abbott Coal lease, the remaining three defendants, David DeHart, Dan Stanley, and Judy Stanley were outside directors (directors who did not have an interest in Northern Indiana Leasing) who regularly attended the directors' meetings. These board members knew or should have known of the low banking quality of the Abbott Coal lease and had a duty, as prudent bank directors, to exercise reasonable control and supervision over the bank's affairs. This duty was heightened by the fact that these defendants knew or should have known of Ed Stanley's and Robert Marcuccilli's interest in the Abbott Coal transactions. By allowing the Allen County Bank to purchase the Abbott Coal lease, David DeHart, Dan Stanley, and Judy Stanley breached their duty to the Bank and are thus liable for losses incurred on the lease.
With respect to the Abbott Coal loan, which was purchased from the Counting House Bank, Ed Stanley, Judy Stanley, David DeHart, and Robert Marcuccilli were "interested directors." These defendants served as directors of the Counting House Bank at the time the Allen County Bank purchased the Abbott Coal loan from the Counting House Bank. As "interested directors", these defendants bear the burden of proving that the purchase of the loan was fair and reasonable to the Allen County Bank. The court finds that these four defendants did not meet their burden. The loan transaction was patently unfair to the Allen County Bank because the Counting House Bank had failed to secure the collateral for the loan. The two loaders which were pledged as security for the loan were subject to a blanket lien as early as July 1981. The Counting House Bank did not file a security agreement on the loaders until March 1, 1983, more than two weeks after the Allen County Bank had purchased the loan.
Defendant Dan Stanley was an outside director who regularly attended meetings. Consequently, Dan Stanley knew or should have known of the unsound quality of the Abbott Coal loan. He had a duty, as a prudent director, to require the Allen County Bank to perform a UCC search on the collateral for the loan prior to purchasing the loan. Dan Stanley clearly breached this duty. Likewise, defendants Bierman and Boley, as noninterested directors who did not attend meetings, had a duty to be familiar with the actions of the Bank and to inquire into the quality of loans which the Bank was purchasing. Boley and Bierman failed to carry out their duties and are thus liable for the losses incurred on the Abbott Coal loan. As noted earlier in connection with the Abbott Coal lease, defendants Bierman and Boley cannot escape liability merely because they did not attend meetings and arguably did not know that the Bank was making this loan.
In summary, all seven of the defendants are jointly and severally liable on both the Abbott Coal lease and the Abbott Coal loan for the reason that the defendants failed to prudently carry out their duties as directors of the Allen County Bank causing the Bank to incur losses.
All of the defendants, except John Boley who resigned effective June 16, 1983, were also members of the Board of Directors when the Allen County Bank participated in the first Conn loan on June 24, 1983. Likewise, all of the defendants except John Boley were members of the Board of directors on July 19, 1983, when the Allen County Bank participated in the second Conn loan. Ed Stanley was president of the Allen County Bank when the loans were participated in. Ed Stanley, Judith Stanley, and David DeHart were directors of the Leiters Ford State Bank when the Leiters Ford State Bank entered into the participation agreement with the Allen County Bank. Thus, as to the two Conn loans, Ed Stanley, Judith Stanley, and David DeHart were "interested directors" because they were directors of both the Leiters Ford State Bank and the Allen *1314 County Bank. Consequently, these defendants bear the burden of proving that they did not breach their duty of loyalty and good faith to the Allen County Bank. The court finds that Ed Stanley, Judith Stanley, and David DeHart did not carry their burden of proof because they did not prove that the transactions with Leiters Ford State Bank were fair and reasonable to the Allen County Bank.
The evidence showed that at the time the Allen County Bank participated in the Conn loans, the conns were carrying an extremely heavy debt load, with a debt-to-net worth ratio of at least 2.23 to 1. Further, the Conns had suffered a large net loss in the previous year and were unable to obtain assistance from the FHA, the lender of last resort, as late as March of 1983. And finally, the loans were undersecured because of the Bank's act of subordinating its liens on the Conn's crops to the input lenders. Participation in the Conn loans was not fair and reasonable to the Allen County Bank and defendants Ed Stanley, Judith Stanley, and David DeHart clearly breached their duty of loyalty and good faith.
The other defendants, Gilbert Bierman, Robert Marcuccilli, and Dan Stanley, were not "interested directors" as far as the two Conn loans are concerned. However, each of these defendants were bound to exercise that degree of care which ordinarily prudent and diligent men would exercise under similar circumstances. Defendant Bierman last attended Board of Director meetings on October 5, 1982. As noted in connection with the Abbott Coal transactions, Bierman argues that he "effectively resigned" on October 5, 1982 and cannot be held liable for any loans that the Allen County Bank's Board of Directors made after October 5, 1982. However, the court finds Bierman's argument unpersuasive for the reasons set out above in the court's discussion of the Abbott Coal transactions. Consequently, Bierman is liable for the losses which the Allen County Bank suffered on the Conn loans.
The remaining two defendants, Robert Marcuccilli and Dan Stanley, were outside directors (directors who did not have an interest in Leiters Ford State Bank) who regularly attended the directors' meetings. These board members knew or should have known of the low banking quality of the Conn loans and had a duty, as prudent bank directors, to exercise reasonable control and supervision over the bank's affairs. This duty was heightened by the fact that these defendants knew or should have known of Ed Stanley's, Judy Stanley's, and David DeHart's interest in the Leiters Ford State Bank. By allowing the Allen County Bank to participate in the two Conn loans, Robert Marcuccilli and Dan Stanley breached their duty to the Bank and thus are liable for losses incurred on the two loans.
Defendant John Boley attended only two board meetings from March 1982 through May 1983. Boley attended two meetings in October of 1982 and one meeting on June 14, 1983 at which he tendered his resignation effective June 16, 1983. Boley was not a member of the Board of Directors on June 24, 1983, the date the Allen County Bank participated in the first Conn loan and Boley also was not a director at the time the second Conn loan was participated in, July 19, 1983. Therefore, there is no basis for holding him liable for the losses incurred on these loans[22].
With respect to the three DeVries loans, all seven of the defendants were members of the Board of Directors when the Allen County Bank purchased or participated in these loans. Ed Stanley was president of the Allen County Bank when the loans were purchased or participated in. Ed Stanley, Judith Stanley, and David DeHart were directors of the Leiters Ford State Bank when the Leiters Ford State Bank entered into the three transactions with the Allen County Bank. Thus, as to the three DeVries transactions, Ed Stanley, Judith Stanley, and David DeHart were "interested directors" because they were *1315 directors of both the Leiters Ford State Bank and the Allen County Bank. Consequently, these defendants bear the burden of proving that they did not breach their duty of loyalty and good faith to the Allen County Bank. The court finds that Ed Stanley, Judith Stanley, and David DeHart did not prove that the transactions with Leiters Ford State Bank were fair and reasonable to the Allen County Bank and thus they are liable for the losses which the Allen County Bank suffered on the three DeVries transactions.
The other defendants, Robert Marcuccilli, Dan Stanley, Gilbert Bierman, and John Boley, were not "interested directors" as far as the three DeVries loans are concerned. However, each of these defendants were bound to exercise that degree of care which ordinarily prudent and diligent men would exercise under similar circumstances. By allowing the Allen County Bank to enter into the three DeVries transactions, Robert Marcuccilli, Dan Stanley, Gilbert Bierman, and John Boley breached their duty to the Bank and thus are liable for losses incurred on the three loans.
In summary: Ed Stanley, Dan Stanley, Judith Stanley, Marcuccilli, DeHart, Bierman and Boley are all jointly and severally liable for the Allen County Bank's losses on both of the Abbott Coal transactions; Ed Stanley, Dan Stanley, Judith Stanley, Marcuccilli, DeHart, and Bierman are all jointly and severally liable for the Allen County Bank's losses on both of the Conn loans; and Ed Stanley, Dan Stanley, Judith Stanley, Marcuccilli, DeHart, Bierman, and Boley are all jointly and severally liable for the Allen County Bank's losses on the three DeVries transactions.
The FDIC has established that the Allen County Bank suffered the following losses through December 6, 1989 (total principal and interest): Abbott Coal loan, $69,034.08; Abbott Coal lease, $59,254.46; Conn loan No. 1, $21,767.91; Conn loan No. 2, $125,865.70; Sidney DeVries, $59,122.78; DeVries Hog & Grain Farm, Inc. loan No. 1, $26,617.80; and DeVries Hog & Grain Farm, Inc. loan No. 2, $133,242.65. These losses total $494,905.38. Interest on these loans is $118.41 per diem from December 6, 1989 to the date of this judgment. The FDIC has further established that the Allen County Bank has incurred $10,042.08 in expenses with respect to the Abbott Coal transactions[23]. Thus the FDIC's total recovery in this action is $574,809.36.
Accordingly, the court concludes that the defendants Ed Stanley, Dan Stanley, Judith Stanley, Marcuccilli, DeHart, Bierman, and Boley are all jointly and severally liable, for principal and interest to date, as follows:
Abbott Coal loan $ 78,084.68
Abbott Coal lease 64,989.26
Sid DeVries 67,642.38
DeVries loan No. 1 32,930.80
DeVries loan No. 2 151,910.25
Abbott Coal fees 10,042.08
___________
$405,599.45
Furthermore the court concludes that the defendants Ed Stanley, Dan Stanley, Judith Stanley, Marcuccilli, DeHart, and Bierman are all jointly and severally liable, for principal and interest to date, as follows:
Conn loan No. 1 $ 24,918.51
Conn loan No. 2 144,291.40
___________
$169,209.91
CONCLUSION
It is hereby ORDERED, ADJUDGED, and DECREED that the defendants, Ed Stanley, Dan Stanley, Judith Stanley, Marcuccilli, DeHart, Bierman, and Boley are all jointly and severally liable to the FDIC in the amount of $405,599.45, and the defendants, Ed Stanley, Dan Stanley, Judith Stanley, Marcuccilli, DeHart, and Bierman are all jointly and severally liable to the FDIC in the amount of $169,209.91.
NOTES
[1] Wayne Roe, originally named by the FDIC as a defendant in this suit, became a Director of the Allen County Bank on August 11, 1981, a position which he held until May 8, 1984. The FDIC and Wayne Roe have settled and Roe is no longer a defendant herein.
[2] In 1974, Ed Stanley, Judy Stanley, and David DeHart purchased a controlling interest in Leiters Ford State Bank from Wayne Roe. Ed Stanley was then named President of Leiters Ford State Bank. During the period from March 1982 through May 1984, Ed Stanley, Judy Stanley, and David DeHart owned approximately 70 percent of the outstanding shares of Leiters Ford State Bank.
[3] In December 1981, Ed Stanley, Judy Stanley, Robert Marcuccilli, Wayne Roe, and David Dehart purchased an interest in Western State Bank, located in South Bend, Indiana.
[4] Gilbert Bierman had an ownership interest in the Allen County Bank of 4117 shares.
[5] In May 1980, Ed Stanley, Judy Stanley, Robert Marcuccilli, David DeHart, and Wayne Roe purchased an interest in Counting House Bank, located in Warsaw, Indiana. The approximate purchase price was $1.8 million, and the purchase was financed by a loan from Northern Trust Bank of Chicago. These five persons owned 100 percent of the stock of a one-bank holding company, Northwest Indiana Bancshares, Inc., which in turn owned approximately 81 percent of the outstanding shares of Counting House Bank at all relevant times. Ed Stanley served as President of Counting House Bank from March 1982 through September 1983.
The Stanley/Marcuccilli group owned 45 percent of the stock of Allen County Bank, as opposed to 78 percent of the stock of Leiters Ford State Bank and over 80 percent of the stock of Counting House Bank. From March 1982 through May 1984, Ed Stanley and Judy Stanley owned approximately 8.5 percent of the outstanding shares of Allen County Bank, compared to over 38 percent of the Leiters Ford Bank shares and over 20 percent of the Counting House Bank shares.
[6] Specifically, the collateral for the lease was a Fiatt Allis HD41B # 75SO3282 bulldozer with enclosed cab and 41R ripper.
[7] FDIC claims that Northern Indiana Leasing was an "affiliate" of Counting House Bank. The defendants dispute this characterization of Northern Indiana Leasing. With regard to the status of Northern Indiana Leasing, the court notes that the evidence presented at trial shows that Robert Marcuccilli and Ed Stanley were both listed as Vice-Presidents of Northern Indiana Leasing on several documents prepared by Northern Indiana Leasing and that Marcuccilli, on behalf of Northern Indiana Leasing, signed the lease agreement between Northern Indiana Leasing and Abbott Coal. Marcuccilli was also Chairman of the Board of Counting House Bank from March 1982 through May 1984. Furthermore, in portions of FDIC's Report of Examination, dated January 2, 1985, Northern Indiana Leasing is described as an "affiliate of Counting House Bank of Warsaw."
[8] V. Edgar Stanley testified that Northern Indiana Leasing had paid an additional $19,500 down on the bulldozer, bringing the total purchase price to $115,000. However, Mr. Stanley's testimony was not credible as the Bill of Sale plainly indicates that zero dollars were paid down and that the purchase price was $95,000.
[9] Financial information on the two other Abbott Coal partners, Mr. Curry and Mr. Swets, was not submitted into evidence.
[10] Incredibly, Mr. Gladstone's January 1, 1983 balance sheet is identical to his December 31, 1981 balance sheet.
[11] Defendants also claim that additional documentation of Abbott Coal, Goldman, and Gladstone's credit history was requested by the Allen County Bank and the Bank was supplied with letters of credit issued by Liberty National Bank of Louisville and Merchants National Bank and Trust of Indianapolis. Defendants further claim that several of these letters of credit were issued after the loan and lease were purchased by the Bank in December 1982 and February 1983.
To support their contentions, defendants submitted seven letters of credit into evidence. These letters of credit were dated as follows: 9-5-79, 11-2-79, 6-5-80, 3-22-82, 4-13-82, 7-1-82, and 3-28-83. While these letters of credit show that Abbott Coal was able to obtain credit in amounts ranging from $15,000 to $50,000, there is no indication that Abbott Coal ever used these lines of credit or whether it was able to repay any indebtedness it did incur under these lines of credit. Further, only one letter of credit was issued after December 1982, contrary to defendants' contentions that several were issued after that date.
Taken together, the court finds that the letters of credit carry little weight to support defendants' contentions that they investigated the credit history of Abbott Coal.
[12] Defendants do not contest that fact that the loan was unsecured at the time the Allen County Bank purchased the loan. Defendants claim, however, that the loan was a "good" loan when made because from March 3, 1983 to May 3, 1984 the principal amount of the $60,000.00 loan was reduced to $38,000.00. While it is true that Abbott Coal made substantial payments on this loan, the fact remains that the loan was unsecured, Abbott Coal filed bankruptcy, and the Allen County Bank suffered a loss of $38,000.00 There is no doubt that a prudent banker would not have purchased this loan, especially considering Abbott Coal's poor financial health at the time the loan was purchased.
[13] Upon reviewing Carper's financial statement as of February 15, 1983 (Plaintiff's Exhibit 134), the court notes that Carper improperly filled out the statement. Schedule D of the statement lists a herd of 26 dairy cows as an asset, valued at $28,000.00. However, Carper failed to include the $28,000.00 value of the herd as an asset on the summary page (balance sheet) of the financial statement. Adding $28,000.00 as an additional asset to Carper's balance sheet increases Carper's net worth to $104,387.00.
[14] If Carper's balance sheet had included Carper's herd of dairy cows as an asset, valued at $28,000.00, then Carper's debt-to-net worth ratio would have been 1.19 to 1.
[15] 12 U.S.C. § 371c(a)(3) provides:
(a) Restrictions on transactions with affiliates
* * * * * *
(3) A member bank and its subsidiaries may not purchase a low-quality asset from an affiliate unless the bank or such subsidiary, pursuant to an independent credit evaluation, committed itself to purchase such asset prior to the time such asset was acquired by the affiliate.
12 U.S.C. § 371c(b)(10) provides:
(10) the term "low-quality asset" means an asset that falls in any one or more of the following categories:
(A) an asset classified as "substandard", "doubtful", or "loss" or treated as "other loans especially mentioned" in the most recent report of examination or inspection of an affiliate prepared by either a Federal or State supervisory agency;
(B) an asset in a nonaccrual status;
(C) an asset on which principal or interest payments are more than thirty days past due; or
(D) an asset whose terms have been renegotiated or compromised due to the deteriorating financial condition of the obligor.
[16] In Exhibit 1 to the Certificate of Participation the following was listed as security:
First security interest in all fixtures, Farm Machinery and equipment now owned inclusing [sic] but not limited to all tractors, tilling and harvesting equipment or hereafter equipment purchased with this loan. All Dairy Cattle. A first security interest in all livestock, farm production, personal property including but not limited to all dairy cattle, beef cattle, swine & sheep, including but not limited to all offspring. A first security interest in all crops and more particularly 1983 growing crops and in all inventory, Accounts Receivable, Contract Rights, instruments, chattel paper and general intangibles, now existant [sic] or hereafter acquired and the proceeds therefrom. All property similar to that listed above, which at any time may hereafter be acquired by the Debtor(s) including, but not limited to, all off-spring of livestock, additions and replacements of livestock and poultry, and replacements of and additions to equipment and other personal property above described; and all products of crops, livestock and poultry, and all feed to be used in fattening or maintaining said livestock and poultry. All proceeds of the sale or other disposition of any of the property described or referred to under Items 3 to 7, inclusive above, and of any offspring, wool, milk, poultry products and contract rights derived from said property, together with all accounts receivable resulting from such sales. It also applies to debtors' interest in crops described above planted or growing on the hereinafter described farm(s) more than 1 year from date hereof and on which crops a separate unfiled security agreement is subsequently taken. All of the above described crops and fixtures are or will become located on the farm land owned by Leonard Diamond and rented by Leonard Diamond located on the Scott Twp 27N R 14 E. Indemnifying Mortgage on 175 acres of Scott Twp 137N R 14 E. Irrevokable [sic] Milk Assignment to County Line Cheese, Albion, Indiana. It is agreed that the Borrowers will contract no additional debt or dairy assignment for the First three (3) years without the written permission of the bank.
[17] Mr. Diamond owned 47 cows, but milked 91 cows. The balance were leased at $30 each per month.
[18] Although it is somewhat unclear as to what happened to Diamond's livestock, machinery and equipment which he had pledged as collateral for this loan, the FDIC Examination Reports suggest that Mr. Diamond sold the farm machinery and at least some of the milk cows, including cows which he did not own. Apparently, the Counting House Bank had initiated suit against several of the sale barns that sold the cows, but it was unknown how much money would be recovered.
[19] This land contract was entered into on April 1, 1983 and recorded with the Fulton County Recorder on July 1, 1983.
[20] The projected sales report, Defendants' Exhibit MME, does not indicate how the figures in the report were arrived at, or who prepared the report.
[21] The Allen County Bank purchased the Abbott Coal lease on December 30, 1982 and the Bank purchased the Abbott Coal loan on February 12, 1983.
[22] See this court's order of December 4, 1989 granting Boley's motion for summary judgment with respect to the two Conn loans.
[23] The defendants have not contested the actual amount of losses nor have they provided the court with an alternative calculation of damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902928/ | Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered January 6, 2011, convicting defendant, after a jury trial, of robbery in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 3 1/2 years, unanimously affirmed.
Defendant’s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not *466reflected in, or not fully explained by, the trial record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v Taylor, 1 NY3d 174, 175-176 [2003]; People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).
Defendant asserts that his trial counsel’s impeachment of the victim by way of prior inconsistent statements was deficient. However, counsel questioned the victim at length about his grand jury testimony, and effectively argued that inconsistencies between that testimony and his trial testimony undermined his credibility. We conclude that counsel’s conduct of the trial met an “objective standard of reasonableness” (Strickland, 466 US at 688). In any event, we also conclude that regardless of whether counsel should have taken the additional impeachment measures set forth by defendant in his present argument, counsel’s failure to take those measures, viewed individually or collectively, did not have a reasonable probability of affecting the outcome and did not deprive defendant of a fair trial (id. at 694). Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2076454/ | 34 Ill. App. 3d 799 (1975)
340 N.E.2d 662
THE PEOPLE ex rel. GEORGE W. ENDICOTT, Plaintiff-Appellant,
v.
A.M. "PETE" HUDDLESTON et al., Defendants-Appellees.
No. 75-213.
Illinois Appellate Court Fifth District.
December 3, 1975.
Supplemental opinion upon denial of rehearing January 16, 1976.
*800 Richard Kruger, of Metropolis, for appellant.
Byron L. Connell, State's Attorney, of Mound City, for appellees.
Reversed and remanded.
Mr. JUSTICE CARTER delivered the opinion of the court:
This is an appeal from an order refusing to vacate an order dismissing with prejudice a petition for a writ of mandamus and refusing to allow appellant leave to amend his petition after said dismissal.
*801 Appellant, George Endicott, is the former Supervisor of Assessments (County Assessor) of Pulaski County. On or about June 28, 1974, he was notified that the Board of County Commissioners did not intend to reappoint him as Supervisor of Assessments, and therefore, his term would expire on September 30, 1974. Subsequently, appellant requested a public hearing on the question of why he was not reappointed as County Assessor, pursuant to section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 484a). This request was granted. Thereafter, petitioner asked that the hearing be conducted in an adversary manner, with an impartial hearing officer, and that he have the right to an attorney, to present opening and closing statements, to present testimony on his own behalf, and to hear and examine witnesses in support of the Board of Commissioners' decision not to reappoint him. The Board denied these requests, except the right to counsel and adopted certain procedural rules for the "hearing." Under these rules, the hearing consisted of the attorney for the Board reading numerous charges and allegations of misconduct by petitioner as County Assessor and the immediate adjournment of the meeting. Neither petitioner nor his attorney were permitted to speak, nor was any testimony or other evidence offered to support the charges of the Board.
On October 9, 1974, appellant filed his original petition for a writ of mandamus against the members of the Board of County Commissioners of Pulaski County, A.M. "Pete" Huddleston, Henry Schnaare, and Donald Miller, to compel them to provide him a "public hearing" under section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 484a). Petitioner contended, as he does now, that a "public hearing" as required by the statute included his right to appear and give evidence, and to hear and examine witnesses testifying on behalf of the Board. The Circuit Court of Pulaski County dismissed the petition with prejudice on December 19, 1974. On January 3, 1975, appellant filed a motion to amend his petition and to vacate or set aside the trial court's order of December 19. These motions were denied except petitioner was permitted to substitute Dallas Jackson, a new member of the Board, for Donald Miller, who no longer was a member.
1-3 In situations other than where one has demonstrated that he is entitled to relief, but that mandamus is an inappropriate remedy, the civil practice rules govern mandamus proceedings. (Ill. Rev. Stat. 1973, ch. 87, pars. 11, 12.) Under the civil practice rules the granting of a motion to dismiss is a final judgment and the filing of a motion to vacate does not destroy that finality. (Solvering v. Baltimore & O. Rwy. Co., 2 Ill. App. 2d 357.) Since a motion for leave to amend a pleading is not a proper post-judgment motion (Fultz v. Haugan, 49 Ill. 2d 131; Ill. Rev. *802 Stat. 1973, ch. 110, par. 68.3), we must first decide whether the trial court abused its discretion in refusing to vacate its order dismissing with prejudice appellant's petition for a writ of mandamus.
The trial court ruled that the original petition was defective in that it failed to establish a clear and undeniable right and that issuance of the writ would not be effectual or beneficial in preserving or protecting a substantive right of the petitioner. A petition for a writ of mandamus must contain the following: (1) a clear right to have the requested act performed (People ex rel. Pignatelli v. Ward, 404 Ill. 240, 243); (2) every material fact necessary to demonstrate the plaintiff's clear right to the writ, (Anderson v. Board of Education, 390 Ill. 412, 435); (3) a showing that the requested act is the duty of the defendant to perform (Anderson); (4) a showing that the requested act is within the power and authority of the defendant (People ex rel. Canella v. City of Chicago, 7 Ill. 2d 416, 418); and (5) in the case of a private (as distinguished from a public) right the plaintiff must show a demand and the defendant's refusal to act (People ex rel. Edelman v. Hunter, 350 Ill. App. 75). It is against these criteria that we must measure appellant's original petition.
The petition alleged that the named defendants were County Commissioners of Pulaski County; that the petitioner was Supervisor of Assessments of the county; and that he had been given notice that he would not be reappointed to a subsequent four-year term. It also stated that he had requested a public hearing under section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 484a) on the question of why he was not reappointed, and that the hearing be open to the public, and be of an adversary and evidentiary nature. He further averred that the hearing, upon the orders of the Board, was not of such a nature, and was not a public hearing within the meaning of the statute. Also included in the petition was case authority for his contention that "public hearing" within the statute meant the right to appear and give evidence and the right to hear and examine witnesses whose testimony is presented by opposing parties.
We think the petition adequately showed that the requested act of holding an evidentiary-type hearing was within the power of the defendants and that the petitioner made a demand and the defendants refused to [so] act. It also contained allegations showing petitioner's clear right to have a public hearing, the duty of defendants to provide the same, and that the hearing as held was not a public hearing. These latter questions could only be determined by the trial court's ruling on whether the hearing held was a "public hearing" within the meaning of the statute. The trial court evidently thought it did comply. However, *803 we do not agree, and believe that the "public hearing" required by section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 484a) contemplates that the incumbent have the right to appear and give evidence and the right to hear and examine witnesses whose testimony is presented by opposing parties.
4 Petitioner argues that the term "public hearing" has a well-settled meaning through judicial interpretation and the meaning should be applied to the instant statute. We agree. The term "public hearing" has consistently been held to require that the hearing include the right to appear and give evidence and also the right to hear and examine witnesses whose testimony is presented by opposing parties. (Braden v. Much, 403 Ill. 507; Farmers Elevator Co. v. Chicago, Rock Island & Pacific Railway Co., 266 Ill. 567; North State, Astor, Lake Shore Drive Association v. City of Chicago, 131 Ill. App. 2d 251. See also Board of Education v. County Board of School Trustees, 13 Ill. App. 2d 561.) Defendants attempt to distinguish these cases by arguing that they were either based upon specific statutory requirements or the necessity that an administrative agency's decision rest upon adequate grounds (while here the County Board arguably did not have to base its decision not to reappoint petitioner on any testimony or evidence adduced at the public hearing). We are not persuaded by these distinctions, and even if we were, Braden v. Much and North State, Astor, Lake Shore Drive Association v. City of Chicago are not so distinguishable. In these cases, the statutory requirement that a public hearing be held before an amendatory zoning ordinance could be validly enacted was neither essential to make a record of an administrative agency's basis for decision nor were any specific statutory procedures applicable. Furthermore, the Supreme Court in Braden adopted the hearing requirements delineated in Farmers' Elevator, which appellees attempt to distinguish. Thus we agree that "public hearing" has an accepted judicial definition, that being the definition established by these cases. We can discern from the instant statute no contrary manifest intention, and therefore hold that this meaning of "public hearing" was intended by the legislature for the statute. People ex rel. Holvey v. Kapp, 355 Ill. 596; Board of Education v. County Board of School Trustees.
5 The instant statute provides that the County Board, upon request from the incumbent County Assessor "shall" hold a public hearing on the question of why he was not reappointed. We believe that by the use of this word of command the County Board was under a duty to hold a public hearing of the type requested by petitioner, just as it is required to fill a vacancy in the position of county assessor by selecting one of the top three scorers on the Department of Revenue competency *804 examination. Since no contrary legislative intent appears, we believe that a public hearing is also a nondiscretionary duty of the County Board. Thus it appears to us that the original petition contained the necessary elements, and the trial court abused its discretion in dismissing the petition and then refusing to vacate its dismissal order.
6 Defendants, however, argue that no benefit would accrue to appellant if his petition were granted and that therefore a writ of mandamus should not be issued. The principal authority for defendant's contention is People ex rel. Willey v. Buck, 181 Ill. App. 110 (1913), where the court refused to order that a park district election be held on a certain date when that date had passed. The cases supporting the court in Willey also involved factual situations where the relief sought could not be granted because either the time for which the writ was sought had passed (Cristman v. Peck, 90 Ill. 150 (1878), the petitioner had no legal right of which to compel performance (Gormley v. Day, 114 Ill. 185 (1885), or the act which petitioner sought to compel could be enjoined by another (People ex rel. Power v. Rose, 219 Ill. 46, 58 (1905)). Thus, this proposition and these cases are not supportive of the defendant's argument. In each of these cases, it was clear as a matter of law, or on the basis of the evidence introduced, that either the court had no authority to issue a writ of mandamus or the issuance of the writ would be a futile act. But in the present appeal, we cannot agree with the defendants and the trial court that as a matter of law no benefit would result if the writ were to be issued. By holding a proper adversary-type public hearing petitioner can attempt to preserve his reputation and the public can gain insight into the machinations of local government. These are important benefits which the legislature must have contemplated when they required a public hearing in section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 484a). Therefore, in the present case, whether the writ would benefit petitioner can only be determined on the basis of competent evidence.
7 Furthermore, we do not believe that the original petition is fatally defective in that it failed to state how petitioner would be benefited by the issuance of the writ. Appellant's petition adequately stated all the necessary facts to show that he was entitled to the writ.
Defendants advance other arguments in support of the trial court's refusal to vacate its original order. We have examined them, find them without merit and will discuss but one of them.
Defendants contend that a writ of mandamus will not be awarded where an official has already acted, i.e., that mandamus will not lie to undo what has already been done, citing Hiawatha Community School District No. 426 v. Skinner, 32 Ill. App. 2d 187. However in that case, the *805 court concluded that the defendant county clerk had properly performed his ministerial duties according to law. Also, it would have been impracticable and a great hardship to have required the defendant there to reallocate property taxes for the petitioner school district. In the present case, however, the County Board did not give petitioner a proper public hearing, nor will any action on their part have to be undone. Furthermore, since we have concluded a public hearing is required by the instant statute, and thus is a ministerial nondiscretionary act, a writ of mandamus would be an appropriate remedy. Corn Belt Bank v. Cellini, 18 Ill. App. 3d 1035; Stevens v. County of Lake, 24 Ill. App. 3d 51, 55.
For the foregoing reasons, the judgment of the Circuit Court of Pulaski County is reversed, and this cause is remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
EBERSPACHER and G.J. MORAN, JJ., concur.
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING
Mr. JUSTICE CARTER delivered the opinion of the court:
The defendants-appellees ask for a rehearing and argue that our construction of "public hearing" in section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 484a) renders that statute invalid under the Illinois Constitution of 1970. They contend that article VII, section 4 of that constitution grants counties the exclusive power to provide for the type of hearing to which an incumbent county assessor is entitled when he is not reappointed and that the instant statute, as construed by this court, contravenes this grant of authority and is therefore invalid. Their position apparently is that this entire subsection of the Revenue Act of 1939 is an unconstitutional invasion of their powers as a county board.
8 Counties have the power to "provide for their officers, manner of selection and terms of office" as prescribed in article VII, section 4 of the 1970 Constitution. (Ill. Constitution (1970) art. VII, § 7(4).) A county assessor may be elected or appointed, as provided for by county ordinance; however:
"Offices other than sheriff, county clerk and treasurer may be eliminated and the terms of office * * * changed by law. Offices other than * * * assessor and auditor may be eliminated and the terms of office and manner of selection changed by county ordinance." (Ill. Const. (1970), art. VII, § 4(c).)
Thus, the 1970 Constitution distinguishes between county offices whose *806 existence, manner of selection, and term of office may be affected by county ordinance and those which can be affected only by a county-wide referendum or by the general law of the State. Assuming arguendo that the right of an incumbent county assessor to a public hearing on the question of why he was not reappointed is somehow part of the selection process, the 1970 Constitution does not give a county board the power to alter this process. Since no county-wide referendum sanctioned the type of hearing held, the county board could not by ordinance do such. Nor does section 26d of "An Act * * * in relation to counties" (Ill. Rev. Stat. 1973, ch. 34, par. 437) give a county board power to deprive an incumbent county assessor of the rights granted by section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 484a). The former section provides that a county board may pass ordinances or make rules and regulations necessary or appropriate to carry into effect the powers granted to the counties. This section follows provisions granting county boards numerous powers (Ill. Rev. Stat. 1973, ch. 34, par. 401 et seq.). These provisions, however, do not include any mention of a county board's power to appoint or refuse to reappoint a county assessor or to adopt rules relating to a hearing on the question of why an incumbent assessor was not reappointed. Even if we could find this power to be implied, this section would be at most a conflicting statutory provision with section 3a of the Revenue Act of 1939. Since the former section is of a general nature, and the latter section is specific, the latter would control. (Board of Education v. City of West Chicago, 55 Ill. App. 2d 401, 205 N.E.2d 63 (1965).) Therefore, there exists no general law to sanction the type of hearing held and defendant's argument must be rejected.
The defendants also argue that since petitioner cannot secure his reappointment as county assessor of Pulaski County, to have an adversary public hearing would be like "`whipping a dead horse' with the same net effect." However we believe that some benefit would accrue to petitioner and the public by holding such a hearing. Moreover, the legislature has commanded that a "public hearing" be held on the question of why an incumbent county assessor was not reappointed. Where a county board has refused to reappoint an incumbent assessor, the positions of the board and the assessor frequently will be antagonistic. In such a situation, we think it likely that a county board would prefer to limit the incumbent assessor's opportunity to attack the board's reasons for declining to reappoint him. A county board could accomplish this by the holding of a hearing like that held by the Pulaski County Board of Supervisors. But such a hearing is not a public hearing to which an incumbent *807 county assessor is entitled. Because a writ of mandamus is essentially the only remedy which petitioner or any incumbent assessor could employ to secure his right to a public hearing, if we were to accept defendants' arguments that an incumbent assessor cannot benefit from the holding of a public hearing since he cannot thereby gain reappointment and that therefore the writ should not issue, we would sanction the deprivation of this right by almost any county board. Since a right without a remedy is no right at all, we would thereby make this statutory right meaningless, in derogation of the authority of the Governor and General Assembly. This we decline to do, and adhere to our original decision.
In a discussion of the issues, the appellee objects to the word "machinations." This word is deleted and the phrase "administrative and political processes" is inserted in its place.
The petition for rehearing is denied. The judgment of the Circuit Court of Pulaski County dismissing the petition for a writ of mandamus is therefore reversed and the case remanded for further proceedings not inconsistent with this opinion.
Judgment reversed; cause remanded.
EBERSPACHER and G.J. MORAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902929/ | Order, Supreme Court, Bronx County (Barry Salman, J.), entered on February 4, 1987, and judgment of said court, entered on March 17, 1987, unanimously affirmed, without costs and without disbursements and without prejudice to an application at trial court to amend the amount of the judgment against Manhattan and Bronx Surface Transit Operating Authority. No opinion. Concur — Kupferman, J. P., Ross, Carro, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902930/ | — Order, Supreme Court, Bronx County (Gerard E. Delaney, J.), entered October 1, 1986, which granted the posttrial motion of defendants Lawrence C. Meyer and the City of New York to set aside the jury’s verdict only to the extent of directing the entry of judgment against the Manganiello defendants and ordering a trial on apportionment of damages and ordering a new trial on the issue of damages unless the plaintiffs stipulated to a judgment in the reduced sums of $750,000, $250,000 *244and $10,000, respectively, unanimously modified, on the law and the facts, to the extent of directing a new trial on the issue of the liability of the Manganiello defendants and, as so modified, the order is affirmed, without costs.
Shortly after 5:30 p.m. on September 3, 1980, Felicia Manganiello was driving her father’s car north on Castle Hill Avenue in The Bronx, when she heard sirens. Unable to see the source of the sirens, and unable to pull over to the right because of traffic, she stopped in the left-hand, northbound lane at the intersection of Castle Hill and Turnbull Avenues for some 15 to 20 seconds before signaling and making a left-hand turn. Almost immediately, her car was struck in the left rear by an unmarked police car on an emergency call, which, finding its path blocked by traffic, had pulled out of the northbound lanes of Castle Hill and was proceeding north in the southbound lanes with its headlights and siren operating. After the impact, the Manganiello vehicle jumped the curb and struck Beverly Plowden and her 2½-year-old son Jahane.
The question of whether Miss Manganiello was negligent under the circumstances in light of Vehicle and Traffic Law § 1144, which requires motorists to yield the right-of-way to approaching emergency vehicles, is essentially factual in nature. Thus, while we agree that the jury’s verdict exonerating the Manganiello defendants from all liability was against the weight of the evidence, in setting aside such verdict, Trial Term, rather than directing judgment against the Manganiello defendants, should have directed a new trial on the issue of their liability. Concur—Murphy, P. J., Kupferman, Kassal, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902931/ | Judgment, Supreme Court, Bronx County (Burton Hecht, J.), entered on or about June 3, 1987, unanimously affirmed, without costs and without disbursements. Appeal from order of said court entered on or about August 12, 1987, unanimously dismissed as nonappealable, without costs and without disbursements. No opinion. Concur — Sandler, J. P., Sullivan, Asch, Milonas and Rosenberger, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902932/ | Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered January 6, 2011, convicting defendant, after a jury trial, of robbery in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 3 1/2 years, unanimously affirmed.
Defendant’s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not *466reflected in, or not fully explained by, the trial record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v Taylor, 1 NY3d 174, 175-176 [2003]; People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).
Defendant asserts that his trial counsel’s impeachment of the victim by way of prior inconsistent statements was deficient. However, counsel questioned the victim at length about his grand jury testimony, and effectively argued that inconsistencies between that testimony and his trial testimony undermined his credibility. We conclude that counsel’s conduct of the trial met an “objective standard of reasonableness” (Strickland, 466 US at 688). In any event, we also conclude that regardless of whether counsel should have taken the additional impeachment measures set forth by defendant in his present argument, counsel’s failure to take those measures, viewed individually or collectively, did not have a reasonable probability of affecting the outcome and did not deprive defendant of a fair trial (id. at 694). Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902933/ | This is a proceeding brought pursuant to CPLR article 78 which seeks an order transferring a case from Justice Wilk to 1 of the 5 City Parts in the Supreme Court of New York County on the grounds that transfer is required by (1) section 202.3 (c) (2) of the Uniform Rules for Trial Courts (22 NYCRR), (2) the IAS Manual for Justices of the Supreme Court, New York County, Civil Branch, dated December 4, 1985 and (3) a memorandum sent to all Justices of the Supreme Court by Justice Xavier Riccobono, the Administrative Judge of the Supreme Court, Civil Branch, New York County, in or about October 1986. We deny the request and dismiss the petition, without costs.
The underlying action which is sought to be transferred was commenced on or about August 25, 1987 (City of New York v *245Morfesis, index No. 45277/87) against the petitioners herein. It alleged statutory and common-law nuisance and sought the appointment of a receiver for 15 buildings and the establishment of a fund to abate hazardous and unhealthy conditions in the buildings. Subsequently, on September 8, 1987, respondent City of New York moved for a preliminary injunction directing the abatement of certain hazardous conditions in the buildings. In the request for judicial intervention (RJI) form which accompanied the order to show cause why a preliminary injunction should not be entered, respondent city requested that the case be assigned to Justice Wilk on the grounds that a related action was pending (Gabriel v 351 St. Nicholas Equities, index No. 14227/86). The RJI form requested the "nature of the relationship” between the cases and the respondent city inserted the phrase, "Both concern possession and control of same premises.” The "related action”, Gabriel v 351 St. Nicholas Equities, was a mortgage foreclosure action in which Justice Eugene Wolin, now retired, by order dated July 11, 1986, appointed a receiver for 351 St. Nicholas Avenue, 1 of the 15 properties which the city alleged contained hazardous conditions. The receiver was directed, among other things, to collect rents and make repairs to the property. A foreclosure sale of the property, scheduled for September 8, 1987, has been stayed at the request of the petitioners here who wish to cure their default.
In July 1987, prior to the commencement of the action of City of New York v Morfesis in August 1987, the New York City Department of Housing Preservation and Development (HPD) advised Justice Wilk that it intended to move to remove and consolidate with the mortgage foreclosure action a pending Civil Court action against the owners of the 15 buildings in question here, an action which sought the elimination of 236 Housing Maintenance Code violations and payment for moneys expended for emergency repairs. The motion is apparently now pending before Justice Wilk.
In September 1987, at the time of the demand for a preliminary injunction in the case of City v Morfesis, the city did not serve upon the petitioners here the RJI form which requested assignment of the case to Justice Wilk. It should be noted that because of the failure, the city did not comply with section 202.6 of the Uniform Rules for Trial Courts. Nevertheless, in an oral argument on September 16, 1987 and, subsequently, in writing and by oral argument on October 21, 1987, all parties had an opportunity to argue their positions with respect to the transfer of City v Morfesis to a City Part.
*246In a decision and order dated November 5, 1987, Justice Wilk denied the motion to transfer City v Morfesis to a City Part. Justice Wilk found "incorrect” the contention that all city cases had to be handled in one of the City Parts and the contention that the cases were not related. He concluded that "the matters bear sufficient relationship to warrant consideration by a single judge.”
The case of City v Morfesis was assigned to Justice Wilk by a clerk who accepted the statement in the RJI form that the case was related to another case already being handled by Justice Wilk. The assignment demonstrates the ongoing practice in the Individual Assignment System (IAS) of assigning related cases to the same Judge. The Uniform Rules for Trial Courts do not deal with the issue of whether related cases should be assigned to the same Judge. The practice which has developed, of permitting a Judge who has the arguably related case to determine if the cases are truly related, is a sound one. It permits the person most familiar with the already pending case to make the determination of whether the new case is related. If this were not done, a Judge unfamiliar with either the pending case or the new case would have to be assigned to make a decision. Contrary to the position of the petitioners, the Uniform Rules for Trial Courts do not require that all city cases be handled by 1 of the 5 City Parts regardless of any other pending actions. An examination of the authorities cited by petitioners makes evident that the issue of the arguably related case is not addressed. First, section 202.3 (c) (2) of the Uniform Rules for Trial Courts states only that, "Where more than one judge is especially assigned to hear a particular category of action or proceeding [here cases involving the city], the assignment of such actions or proceedings to the judges so assigned shall be at random.” Second, the IAS Manual referred to states only as follows: "Government IAS parts—will receive cases in which the City of New York, or Transit Authority are parties.” Third, while the memorandum from Justice Riccobono, circulated around October 1986, is not included in the papers, there is nothing to suggest that it required all city cases to be heard by 1 of the 5 City Parts, even where a related case was before a Judge who was not in a City Part. The Uniform Rules for Trial Courts contemplate the situation where a new case, unrelated to other cases already filed, comes into the system and must be assigned to a Judge. Perhaps a rule should be fashioned to deal with cases which are arguably related to others already filed.
There was no abuse of discretion by Justice Wilk in his *247refusal to transfer the case of City v Morfesis to a City Part. Moreover, while reasonable persons may disagree on the relation between the cases, there was no abuse of discretion in Justice Wilk’s finding of a relation. A receiver with authority to repair had already been appointed for the building involved in a foreclosure action. The fact that there are allegedly hazardous conditions in that building which the city seeks to correct in City v Morfesis is a sufficient reason to have the case assigned to the same Judge.
Finally, to require all city cases to be determined only by Judges in the City Parts is to preclude from administrators the necessary flexibility for dealing with the myriad problems which can arise in an IAS system. Concur—Carro, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902934/ | Sullivan, J. P., and Ross, J.,
dissent in a memorandum by Sullivan, J. P., as follows: In this CPLR article 78 proceeding petitioners, defendants in the recently filed underlying action brought by the City of New York, seek to have that action transferred pursuant to section 202.3 (c) (2) of the Uniform Rules for Trial Courts (22 NYCRR 202.3 [c] [2]) and the IAS Manual for Justices of the Supreme Court, New York County, Civil Branch, dated December 4, 1985, to the ex parte motion office of the Supreme Court for random assignment to 1 of the 5 IAS Parts established to handle cases in which the city is a party. Petitioners allege that the underlying action was, in the first instance, improperly assigned by the ex parte motion office to Justice Wilk in violation of the Uniform Rules for Trial Courts and IAS Manual. I find merit to petitioners’ claims and would grant the petition.
The underlying action seeks the abatement of hazardous conditions alleged to exist in 15 different buildings owned or managed by petitioners, the appointment of a receiver to operate the buildings until such conditions are remedied, the establishment of a fund to be used by the receiver to abate the conditions, and the imposition of various penalties. That action was not randomly assigned to 1 of the 5 City Parts, but, rather, referred directly by the ex parte motion clerk’s office to Justice Wilk on the basis of a statement contained in the request for judicial intervention (RJI) that a pending related case was being handled by Justice Wilk. The RJI, prepared and filed by the Corporation Counsel, was never served on any of the defendants, petitioners herein, as required by section 202.6 of the Uniform Rules for Trial Courts.
Section 202.3 (c) (2) of the Uniform Rules for Trial Courts requires the assignment of cases by random selection to *248Judges specially assigned to hear a particular category of actions or proceedings as authorized by the Chief Administrator. The Administrative Judge has established five IAS Parts to handle cases in which the city is a party. The IAS Manual and an October 1986 memorandum from the Administrative Judge require the assignment of any case in which the city is a party to the Justices presiding in the five designated Parts. The same memorandum stated that if in the normal course a city case were sent to a Justice other than one of those presiding over a City Part it should be transferred to one of the designated Justices.
That the Uniform Rules for Trial Courts require that all city cases be handled by 1 of the 5 City Parts is beyond dispute. Section 202.3, in pertinent part, provides:
"(b) Assignments * * * Assignments shall be made by the clerk of the court pursuant to a method of random selection authorized by the Chief Administrator * * *
"(c) Exceptions * * *
"(2) The Chief Administrator may authorize the establishment in any court-of special categories of actions and proceedings * * * for assignment to judges specially assigned to hear such actions or proceedings. Where more than one judge is specially assigned to hear a particular category of action or proceeding, the assignment of such actions or proceedings to the judges so assigned shall be at random.” (Emphasis added.) As used in statutes or rules or the like, words of command such as "shall” are generally construed as mandatory. (Daytop Vil. v Consolidated Edison Co., 61 NY2d 933, 934; Dashinsky v Santjer, 32 AD2d 382, 387.) Thus, assignment by random selection is mandatory, except, for purposes of this controversy, in the case of a Judge specially assigned to hear a certain case; in the event, however, that more than one Judge is so assigned, the assignment "shall be at random” (22 NYCRR 202.3 [c] [2]).
No one argues with the proposition that the principle of random selection should, even in the absence of a specific provision therefor in the Uniform Rules for Trial Courts, yield in a "related case” situation. Not only does such an exception make sense in terms of judicial economy but, undeniably, court administrators should have the flexibility to allow a departure from the random selection principle when the interests of justice compel the continuous supervision of related cases by a single Judge. Neither the viability nor the rationale of "related case” referrals is the issue here, however, where *249the referral was accomplished by an ex parte maneuver in violation of section 202.6 of the Uniform Rules for Trial Courts and the claim of "related case” is specious at best.
The basis for the "related case” reference is that Justice Wilk had before him a mortgage foreclosure proceeding, Gabriel v 351 St. Nicholas Equities, involving 1 of the 15 buildings that are the subject of the underlying action, and in which the city was a nominal party. The complaint in the mortgage foreclosure action alleged that the City Franchise Tax Bureau might have a claim or lien against the premises subordinate to the lien of the plaintiffs’ mortgage and that the Department of Rental Housing and Maintenance was a judgment creditor with liens subordinate to the plaintiffs’. When the city, by order to show cause, sought a preliminary injunction compelling the abatement of certain hazardous conditions in the underlying action, its RJI, referring to the mortgage foreclosure action, stated, "Both [cases] concern possession and control of same premises.” That statement appears to be as inaccurate now as it was when made.
Possession and control of the mortgaged premises was never an issue in the foreclosure action, the sole basis of which was the alleged nonpayment of principal and interest. Only the city appeared, claiming a $929.22 priority over the plaintiffs’ lien. A judgment of foreclosure and sale preserving the city’s claim was entered even before the underlying action was ever commenced. On the other hand, the latter action, as already noted, seeks, inter alia, the abatement of alleged hazardous conditions in 15 different buildings, penalties of $1,000 per nuisance for each day that the same is permitted to exist, $5,000 for each Building Code violation and $150 per day per violation for each day that the petitioners fail to remove such violation, and an award of $43,684 for the cost of emergency repairs. Thus, it is obvious that the "related” mortgage foreclosure action and the underlying public nuisance action have nothing in common, except for the irrelevant coincidence that 1 of the 15 buildings involved in the latter action is the subject of the mortgage foreclosure.*
The city now attempts to justify its claim that the two matters are related by arguing that the condition of the mortgaged premises was an issue in the foreclosure proceed*250ing. In support of this argument it claims that attorneys for the Department of Housing Preservation and Development (HPD) had advised Justice Wilk on July 29, 1987, prior to the commencement of the underlying action, that HPD intended to seek to remove and consolidate a pending Civil Court action commenced by it against the owners of the premises in the mortgage foreclosure action with the foreclosure action. In the Civil Court action HPD sought the correction of 236 outstanding Housing Maintenance Code violations, the recovery of fines and penalties and the payment of moneys expended by HPD for emergency repairs. Consolidation was allegedly sought so that the receiver appointed in the foreclosure action could be authorized to make urgently needed repairs. Of course, consolidation was not required to achieve such a result. The same receiver already appointed in the mortgage foreclosure could have been appointed in the Civil Court action. It is also noteworthy that HPD never sought to have -a receiver appointed in that action. Moreover, the consolidation motion had not even been made at the time of the filing of the RJI. In fact, although pending, it had not yet been decided at the time issue was joined in this proceeding. In any event, the argument based on the consolidation motion is sheer bootstrapping.
Equally meritless is the suggestion that the ex parte motion clerk "independently determined” that the underlying action and the previously filed mortgage foreclosure were sufficiently related so as to justify assignment of the case to Justice Wilk. The city has submitted neither an affidavit nor any other documentation to support such a conclusion, and petitioners were never given the opportunity to be heard since the RJI was never served on them. It seems fairly obvious that the clerk in such cases accepts at face value the representation set forth in the RJI, which is signed by the attorney for the party seeking intervention.
In the circumstances presented, assigning this case to Justice Wilk, rather than permitting random selection among the five Parts designated to hear cases in which the city is a party, appears to be nothing less than a deliberate attempt to circumvent the IAS rules and to steer the underlying nuisance abatement action to a particular Judge. The case was not related at all to the private mortgage foreclosure action and, even if it were, petitioners, by virtue of the city’s failure to serve them with a copy of the RJI, were never given notice of the city’s attempt to bypass the random assignment of the case to a City Part. To countenance what has occurred here is *251to condone a form of Judge-shopping, and to wreak havoc upon the IAS system, which, to prove successful, must have the confidence of the Bar that cases are truly being assigned on a random selection basis. Nothing, of course, precludes the city from moving on the basis of additional facts before the Judge to whom the underlying case is assigned for a referral to Justice Wilk on the ground that he has before him a related case.
The writ should be granted and the underlying action returned to the ex parte motion clerk for assignment to one of the City Parts in accordance with the Uniform Rules for Trial Courts.
The majority’s stress on Justice Wilk’s conclusion in the determination of petitioners’ motion to transfer the underlying case, decided subsequent to the commencement of this proceeding, that "the matters bear sufficient relationship to warrant consideration by a single judge” is unavailing. Notably absent is any explanation as to how the cases are related. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902935/ | Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), rendered December 20, 1983, which convicted defendant, following a jury trial, of attempted murder in the second degree, two counts of robbery in the first degree, robbery in the second degree, two counts of assault in the first degree and two counts of burglary in the first degree, and sentenced him, as a predicate violent felony offender, to concurrent terms of 1216 to 25 years on the attempted murder and IV2 to 15 years on the assault counts, and to concurrent terms of IV2 years to 15 years on the robbery and burglary counts, the robbery and burglary sentences to run consecutively to the attempted murder and assault sentences, unanimously modified, on the law, to provide that the sentences on the assault counts run concurrently with the sentences on the burglary and robbery counts and otherwise affirmed.
On the afternoon of July 12, 1982 defendant and codefendant James Smiley robbed Juan Diaz at gunpoint in Diaz’ apartment. After taking several items of jewelry from Diaz, the perpetrators became enraged at not finding any money on the premises. Defendant tied Diaz up and Smiley slashed Diaz twice on the neck with a knife. The perpetrators then ransacked the apartment. Smiley checked Diaz’ pulse and stabbed him repeatedly in the body and neck. Later, following another search of the apartment, Smiley, at defendant’s urging "to make sure”, stabbed Diaz several more times in the chest. The perpetrators then covered Diaz with mattresses and set them on fire. Diaz miraculously survived to testify at trial.
The primary issue presented on appeal is whether the trial court was authorized pursuant to Penal Law § 70.25 (2) to impose consecutive sentences. Defendant argues that the sen*252tences on the assault and attempted murder convictions should run concurrently with the robbery and burglary convictions since the stabbing of Diaz with the knife (the assault) was a material element of the burglary and robbery convictions and itself constituted the offense of attempted murder. This court dealt with a similar argument offered by codefendant Smiley, who was convicted for the same offenses and sentenced identically. (See, People v Smiley, 121 AD2d 274 [1st Dept 1986].) In upholding the imposition of consecutive sentencing, we held that the robbery and burglary and attempted murder emanated from separate successive acts. The final return to the victim to ensure his demise occurred after the robbery had been completed. We did, however, modify the sentences to the extent of making the sentences on the assault convictions run concurrently with the burglary and robbery convictions related to the use of the knife. We held that the act of stabbing Diaz, itself assault, was also a material element of the burglary and robbery charges related to the use of the knife. In addition, the offenses of robbery in the first and second degrees were material elements of the felony assault charge. In accordance with our holding in Smiley, the sentences on the assault convictions should be modified to run concurrently with the robbery and burglary convictions while defendant’s sentences on the assault, robbery and burglary convictions should properly be made to run consecutively to the sentence on the attempted murder conviction.
The other contentions raised by defendant have been examined and are without merit. Concur—Sullivan, J. P., Ross, Kassal, Rosenberger and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902981/ | *469Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 15, 2012, which, to the extent appealed from as limited by the briefs, denied the Reinosa defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Appellants failed to demonstrate as a matter of law that the alleged defect, at the location where plaintiff testified she tripped on a raised portion of the sidewalk, was trivial. The photographs provided by appellants in support of their motion are unclear in the record.
Based on plaintiffs testimony, it is also not clear whether or not she tripped on a portion of the sidewalk abutting appellants’ property or on the pedestrian ramp, for which the City of New York is responsible (see Gary v 101 Owners Corp., 89 AD3d 627 [1st Dept 2011]). Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902937/ | Order, Appellate Term of the Supreme Court, First Department, entered October 20, 1986, which affirmed the order of the Civil Court, New York County (Joseph Slavin, J.), entered, after a jury trial, on November 18, 1985, granting defendant judgment against the plaintiffs dismissing the complaint, unanimously reversed, on the law, without costs, the judgment vacated and a new trial ordered on the issue of whether defendant had actual notice of the unsafe condition and, in the event liability is found, on the issue of plaintiffs’ damages.
On December 12, 1982, at approximately 9:00 a.m., while she and her husband were shopping in defendant’s supermar*254ket on West 207th Street in upper Manhattan, plaintiff Dorothy Adams slipped and fell on a can of corned beef hash which lay in the aisle near a display of that product.
The jury, in its special verdict, found that Mrs. Adams had fallen as she described and that the aisle at that point was not in a reasonably safe condition for the use of the store’s customers. It further found, however, that plaintiffs had failed to prove that the defendant had actual notice of the unsafe condition.
The case had been submitted to the jury on a theory of actual notice based upon the testimony of Mrs. Adams and her husband that, after her fall, the store manager was summoned and that, when he arrived at the scene, he said that he was sorry it had happened and that he "had told the kid to pick the cans up a half-hour before.” The store manager denied any such conversation, testifying that he merely asked Mrs. Adams her name and address, whether she was hurt and whether she needed an ambulance.
In its charge, the court instructed the jury that plaintiffs were the only interested witnesses because they were the only ones who had an interest in the outcome of this case. Plaintiffs’ counsel took exception to such instruction, contending that the store manager, who was still an employee of defendant, should be classified as an interested witness. The court denied the request, noting that it knew for a fact from reading newspapers that defendant owned 165 stores and that the night manager was not an interested witness especially because there was insurance coverage. We disagree and remand for a new trial on the limited issue of whether defendant had actual notice and, in the event liability is found, on the issue of plaintiffs’ damages.
While the mere employer-employee relationship existing between a party and a defendant, either at the time of the incident or the trial does not necessarily make the employee an interested witness, it is firmly established that an actor in the incident, with a motive to shield himself from blame, is an interested witness, even if he isn’t a party to the action (see, Coleman v New York City Tr. Auth., 37 NY2d 137, 142). Here, the store manager, who was charged with the over-all supervision of the store, had testified that he himself had set up the corned beef hash display; that he supervised a three-man maintenance crew which was responsible for patrolling the store and making sure all the aisles were swept and clean; and, that he had checked the aisles 5 or 10 minutes before the *255accident and had seen no cans on the floor. He had motive, possibly pecuniary, in protecting his relationship with his employer, particularly where it was alleged that he had made statements against defendant’s interest. Under the circumstances, where the issue of actual notice came down to a question of the witnesses’ credibility, the jury should have been instructed that the store manager, like the plaintiffs, was an interested witness. Further, upon the retrial, testimony regarding the reasonable value of the medical services rendered by Dr. Shafer should be permitted. Concur—Kupferman, J. P., Sullivan, Carro, Kassal and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902938/ | Order of disposition, Family Court, Bronx County (Fernando H. Silva, J.), entered on or about February 17, 2012, which, following a fact-finding determination that respondent mother abandoned her child, terminated her parental rights to the child, and transferred guardianship and custody of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.
The agency established by clear and convincing evidence that respondent abandoned her child by failing to contact the child or the agency during the six-month period immediately preceding the filing of the petition, although able to do so, and that she was not discouraged from doing so by the agency (Social Services Law § 384-b [5] [a]; Matter of Annette B., 4 NY3d 509, 513-514 [2005]).
The court properly concluded that the child’s best interests would be better served by termination of respondent’s parental rights than by issuing a suspended judgment, because there was no evidence that she had a realistic and feasible plan to provide an adequate and stable home for the child (see Matter of Donelle Thomas M., 4 AD3d 137, 138 [1st Dept 2004]). Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902940/ | Judgment, Supreme Court, Bronx County (Burton Hecht, J.), rendered on June 10, 1986, 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—Kupferman, J. P., Sullivan, Asch, Kassal and Rosenberger, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902941/ | Metro Containers, Inc., et al., Third-Party Defendants-Appellants.— Order, Supreme Court, Bronx County (Irma Vidal Santaella, J.), entered January 29, 1987, granting a motion by the third-party plaintiffs-respondents for reargument of a prior motion in which respondents had sought to amend their third-party complaint to add three additional causes of action, and on reargument granting their motion for leave to amend the third-party complaint, and denying a cross motion by plaintiff for severance of the third-party action in the event the court granted leave to amend, unanimously modified, on the law, with costs, and the motion to amend the third-party complaint to add three causes of action is denied, and otherwise affirmed.
The main action was commenced on March 21, 1982 by plaintiff to recover damages for personal injuries sustained when a bottle containing a carbonated beverage exploded on February 14, 1980. The action was brought against the respondents Joyce Beverages, Inc. and Seven-Up Bottling Company of New York, alleging that these defendants manufactured and distributed the beverage.
In March 1984 the respondents served a third-party summons and complaint on the three third-party defendants (appellants), all manufacturers of glass bottles. Seven causes of action for contribution and indemnification were asserted, all predicated on the claim that the glass bottle in question had been improperly designed and manufactured by one of the appellants, which had in turn sold it to the respondents. The seven causes of action for contribution and indemnification embraced claims alleging strict products liability, express warranty, implied warranty, negligence, contractual indemnification, common-law indemnification and contribution.
After each of the third-party defendants answered the third-party complaint, there followed full discovery, including examinations before trial of all parties.
*257By notice of motion dated October 16, 1985 the respondents moved for leave to amend the third-party complaint, the motion being supported only by an affirmation of a lawyer from the law firm representing the respondents. The motion sought leave to add three causes of action as follows:
(1) The proposed eighth cause of action alleged that each third-party defendant "acted in a tortious manner in the operation, management, control, direction and supervision of the manufacture of the subject bottle”.
(2) The proposed ninth cause of action alleged that each third-party defendant "acted in pursuance of a common plan or design to commit a tortious act in the operation, management, control, direction and supervision of the manufacture of the subject bottle”.
(3) The proposed tenth cause of action alleged that each third-party defendant "acted in a tortious manner in adhering to a dangerous industry wide safety standard in their management, control, direction and supervision of the subject bottle.”
The appellants moved to dismiss on varied grounds, including the claim that no affidavit had been submitted from anyone with knowledge of the facts to support the proposed additional claims. The motion to amend was denied in an order dated July 18, 1986, without prejudice to renewal upon proper papers.
The motion for leave to amend was renewed by notice of motion in September 1986, once again supported only by an attorney’s affidavit. The I.A.S. court granted the motion for renewal, and upon renewal, the motion to amend, in an order from which this appeal is taken. We disagree with the order granting the motion to amend, and accordingly, modify the order appealed from to deny that motion.
What becomes apparent from an examination of the record is that the third-party plaintiffs were unable to determine either from their own records or from the third-party defendants in the course of discovery the identity of the company from whom the third-party plaintiffs had purchased the bottle whose explosion had given rise to the action. The several causes of action sought to be added to the third-party complaint on the motion to amend clearly represent an effort to assert a claim against each of the appellants, notwithstanding the inability of the respondents to identify the company from which they had acquired the bottle.
As to the eighth cause of action, alleging that each appellant "acted in a tortious manner”, the cause of action is either *258duplicative of one or more of the causes of action set forth in the original third-party complaint, or represents an effort to set forth a novel theory of liability previously unknown to the law. In either event, no basis for amending the third-party complaint to add this cause of action appears.
The proposed ninth cause of action, alleging that each third-party defendant "acted in pursuance of a common plan or design to commit a tortious act”, quite clearly represents an effort to apply to the facts here the theory of concerted action as a basis for liability recognized by this court under the unusual circumstances of a DES case in Bichler v Lilly & Co. (79 AD2d 317, affd 55 NY2d 571). In affirming this court’s decision in Bichler v Lilly & Co. (supra), the Court of Appeals concluded that the issue of concerted action as a basis for liability had not been preserved for its review in that case.
We think it unnecessary to determine here whether the theory of concert of action approved by this court in Bichler (supra) is applicable to the very different kind of factual situation presented here. It suffices to note that the affidavit presented in support of the proposed cause of action sets forth no facts whatever tending to establish that the third-party defendants had in fact acted in pursuance of a common design in the manufacture of bottles which they sold to the third-party plaintiffs. Accordingly, the affidavit submitted in support of the motion to amend is clearly insufficient as an affidavit of merit. (See, Beekman v Sylvan Lawrence, Inc., Ill AD2d 658.)
Moreover, it is apparent that the third-party plaintiffs were unable in the course of their extensive discovery to develop any facts to sustain the proposed cause of action.
Finally, the proposed tenth cause of action asserting that each third-party defendant acted in a tortious manner in adhering to a dangerous industry-wide safety standard is both legally insufficient as worded to set forth a recognized basis for liability, and is also wholly unsupported by any factual demonstration. Concur—Sandler, J. P., Carro, Kassal, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/186759/ | 458 F.3d 1
UNITED STATES of America, Appelleev.Matthew WEST, a/k/a Titus Shackleford, Appellant.
No. 05-3070.
United States Court of Appeals, District of Columbia Circuit.
Argued January 12, 2006.
Decided August 15, 2006.
James W. Beane, Jr., appointed by the court, argued the cause and filed the briefs for appellant.
Bernard J. Delia, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Roy W. McLeese, III and Elizabeth Trosman, Assistant U.S. Attorneys.
Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge.
1
A jury found defendant Matthew West guilty of unlawful possession of a firearm and ammunition by a convicted felon. West raises two issues on appeal. First, he argues that the district court's use of compound questions during voir dire denied him sufficient information to challenge prospective jurors for cause and impaired his ability to exercise his peremptory challenges intelligently. Second, he contends that the district court erred in failing to suppress evidence of the gun found in his bag. For the reasons set forth below, we affirm the judgment of conviction.
2
* West was a passenger on a Greyhound bus traveling from New Jersey to North Carolina on February 2, 2004. During a brief stopover at the Greyhound terminal in Washington, D.C., officers from the Drug Interdiction Unit of the Metropolitan Police Department (MPD) boarded the bus and began questioning passengers. West was seated in the last row of the bus. Detective James McNamara — who was wearing street clothes and did not display a weapon — approached West, showed him his badge, and identified himself as an officer with the Drug Interdiction Unit. In a conversational tone, McNamara asked to see West's bus ticket. West handed over his ticket, which McNamara examined and returned. Next, McNamara inquired as to whether the bag at West's feet belonged to him and whether he had packed it himself. West answered "yes" to both questions. McNamara then asked to search the bag. West opened it and began moving items around so that the detective could see what was inside. McNamara then asked West for permission to search the bag himself to ensure his safety.
3
At this point, the recollections of Detective McNamara and defendant West diverge. At a pretrial hearing held to consider West's motion to suppress evidence, McNamara testified that West told him he could search the bag, and that West then held the bag's flap back to allow the search. As the detective moved some clothing, he discovered a loaded revolver and placed West under arrest. By contrast, West testified that, although he opened the bag for the detective and "didn't mind going through it" for him, he "never told [McNamara] he [could] go through it." Suppression Hr'g Tr. 56 (May 5, 2004). After hearing the conflicting testimony, the district court concluded that West had consented to the search, that his consent was voluntary, and that evidence regarding the gun was therefore admissible at trial.
4
Jury selection commenced on September 29, 2004. Before voir dire began, the lawyers were given a list of the occupations that potential jurors had reported on their juror questionnaires. All but six potential jurors on the panel had listed their occupations.
5
The court conducted voir dire by asking the panel a series of twenty-nine questions. The questions had either one or two parts. In a one-part inquiry, the court simply asked the venire members an open-ended fact question, such as: Do you know any of the prospective trial witnesses (whom counsel had earlier listed)? The court instructed the panel members to raise their hands if the answer was "yes," and anyone who answered in the affirmative was called to the bench individually for further questioning to determine whether he or she could be fair and impartial despite that fact. Twenty-two of the court's twenty-nine questions were one-part inquiries.1
6
The court asked the remaining seven questions in two-part, compound form. The first part of the question was again a fact question, for example: Are or were you, or your close personal friends or family members, employed by a law enforcement agency? The second part of each question was: Would that fact make you unable to be fair and impartial to both sides? The judge told the prospective jurors that, regardless of their answer to the first part (the fact question), they were not to raise their hands or say anything unless their answer to the second part (the unable to be fair and impartial question) was "yes." Only then would they be called to the bench for individual voir dire. There were six other two-part questions, including a similar compound inquiry regarding current or previous employment in criminal defense.2
7
West's counsel objected to the court's use of compound questions, arguing that it deprived him of "the opportunity to ferret out possible bias." Trial Tr. 57 (Sept. 29, 2004). The prosecutor joined defense counsel's objection, stating that she "agree[d] that jurors should not be responsible for drawing their own conclusions about what makes them fair and impartial." Id. at 58. The court rejected the lawyers' objections, explaining that the court "place[d] a very high premium on these jurors abiding by their oath," that "[j]ury selection in this district as it is takes hours," and that "[i]f we attenuate this further, what now takes . . . three hours to pick a jury will be six to seven hours." Id. at 61-62. Selection of the jury concluded after approximately three hours and the jurors, including two alternates, were sworn.
8
Before trial began the next day, defense counsel noted a further objection for the record, stating that he had been forced to use peremptory challenges on five potential jurors because he "knew nothing about their level of potential bias." Trial Tr. 9 (Sept. 30, 2004). Those five included an attorney with the Federal Bureau of Investigation (FBI), an attorney with the Department of Justice, a security officer, and two individuals who did not list any employment on their juror questionnaires.
9
The government called Detective McNamara as its first witness. Almost immediately after the detective began testifying, a juror raised his hand and informed the court that he knew the witness. The court excused the rest of the jury and called the juror to the bench, where the juror informed the court that he was an Amtrak conductor and had helped McNamara and his drug interdiction team take passengers who were being arrested off of trains. In response to questioning from the court, the juror stated that, as a result of this experience, he did not believe he could remain fair and impartial. The court excused the juror and seated an alternate in his place. Detective McNamara then continued his testimony.
10
McNamara's trial testimony largely repeated his testimony at the suppression hearing. During its course, McNamara mentioned that a sergeant in the Drug Interdiction Unit — Brian Murphy — was with him on the bus on the day of West's arrest. Sergeant Murphy (who was not otherwise involved in the case) was not a trial witness; hence, his name, unlike McNamara's, had not been read to the jury pool. Before the second day of trial began, a juror approached the court to say that she thought she knew Sergeant Murphy. The juror said that Murphy had once dated a friend of hers, but that she had not seen the sergeant in three years. The juror stated that she had asked another friend — an MPD detective who had worked on undercover narcotics cases with Murphy — for confirmation that the Sergeant Brian Murphy mentioned at trial was the same Sergeant Brian Murphy she knew. In response to questioning by the court about her relationship with the MPD detective, the juror said that they were "[p]latonic friend[s]," that they had been "tight for four or five years," but that they had "grown apart in the last year." Trial Tr. 8 (Oct. 1, 2004). The court asked the juror whether there was anything about her prior interactions with Sergeant Murphy or with her detective friend that would render her unable to be fair and impartial to both sides in the case. The juror attested to her ability to remain fair and impartial.
11
The defense moved to excuse this second juror for cause. The court denied the motion, finding that the juror had said nothing to indicate any bias, and that her relationships with Sergeant Murphy and the detective were insufficient to warrant a for-cause strike. Defense counsel again moved to excuse the juror, arguing that the voir dire process had been flawed and that seating the alternate would remedy the problem. Defense counsel maintained that, had the court not used a compound question, he would have known about the juror's friendship with an MPD detective and would have exercised a peremptory challenge against her. The court rejected this argument, finding it speculative that the juror would have regarded the detective, from whom she had grown apart, as a "close personal friend" (as called for by the first part of the compound question). Id. at 15-16.
12
The trial concluded on the second day. West did not testify, nor did he present any witnesses or evidence on his behalf. His sole defense, offered during counsel's closing argument, was that he did not have constructive possession of the gun because he did not intend to possess it at the time he was arrested. After deliberating less than an hour, the jury returned a guilty verdict.
13
On this appeal, West challenges both the district court's method of conducting the voir dire and its denial of his motion to suppress the gun. We consider the former in Part II and the latter in Part III.
II
14
West's objections to the voir dire are aimed at the district court's practice of asking certain questions using the two-part, compound format described above. Although at oral argument West contended that his objection extended to "the entire voir dire process," Oral Arg. Tape at 2:21, he conceded that his briefs focused only on the possible law enforcement bias of potential jurors arising from employment by a law enforcement agency or close association with law enforcement officers, see id. at 5:49. The only question he objected to on this score was the compound question that asked the prospective jurors whether they, or their close personal friends or family members, were currently or previously employed by a law enforcement agency — but that precluded an affirmative response unless a prospective juror believed that he or she "would be unable to be fair and impartial to both sides . . . as a result of that experience." Trial Tr. 49 (Sept. 29, 2004). None of the panel members raised their hands at the end of this two-part question.
15
West charges that, due to the way in which the court structured this question, he never learned whether any of the potential jurors, or their close friends or family, were currently or previously employed by law enforcement. He contends that this was error for two reasons: the court's method denied him sufficient information to challenge prospective jurors for cause, and it impaired his ability to exercise his peremptory challenges intelligently.
16
West's critique parallels the Supreme Court's explanation that "[v]oir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges." Mu'Min v. Virginia, 500 U.S. 415, 431, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (italics omitted); see Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981). As this court has recognized, "[w]ithout knowledge bearing on the qualifications of the veniremen, neither function can be performed intelligently." United States v. Peterson, 483 F.2d 1222, 1226-27 (D.C.Cir.1973). We consider West's two arguments below.
17
* "Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, . . . . federal judges have been accorded ample discretion in determining how best to conduct the voir dire." Rosales-Lopez, 451 U.S. at 189, 101 S.Ct. 1629 (italics omitted). That discretion extends to the "mode and manner of proceeding," as well as "to the range of questions put to the prospective jurors." United States v. Robinson, 475 F.2d 376, 380 (D.C.Cir.1973); see United States v. Orenuga, 430 F.3d 1158, 1162 (D.C.Cir.2005). The voir dire process is governed by Federal Rule of Criminal Procedure 24(a), which leaves its conduct largely up to the trial judge:
18
(1) In General. The court may examine prospective jurors or may permit the attorneys for the parties to do so.
19
(2) Court Examination. If the court examines the jurors, it must permit the attorneys for the parties to: (A) ask further questions that the court considers proper; or (B) submit further questions that the court may ask if it considers them proper.
20
FED. R. CRIM. P. 24(a) (emphasis added). As the Rule makes clear, "federal trial judges are not required to ask every question that counsel — even all counsel — believes is appropriate." United States v. Lawes, 292 F.3d 123, 128 (2d Cir.2002).
21
Although the district court has broad discretion, "[t]he exercise of this discretion, and the restriction upon inquiries at the request of counsel, [remain] subject to the essential demands of fairness." Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); see Peterson, 483 F.2d at 1227; Robinson, 475 F.2d at 380. Defense counsel "always `must be given a full and fair opportunity to expose bias or prejudice on the part of the veniremen.'" Orenuga, 430 F.3d at 1163 (quoting Robinson, 475 F.2d at 380-81). As the Supreme Court has emphasized, "[w]ithout an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled." Rosales-Lopez, 451 U.S. at 188, 101 S.Ct. 1629 (italics omitted); see United States v. Edmond, 52 F.3d 1080, 1094 (D.C.Cir.1995).
22
We have described the appropriate standard of appellate review for challenges to a trial court's voir dire many times. Under that standard, "absent abuse of [the court's] broad discretion, and a showing that the rights of the accused have been substantially prejudiced thereby, the trial judge's rulings as to the scope and content of voir dire will not be disturbed on appeal." Robinson, 475 F.2d at 380 (emphasis added); accord Edmond, 52 F.3d at 1095; United States v. Washington, 705 F.2d 489, 495 (D.C.Cir.1983); United States v. Caldwell, 543 F.2d 1333, 1345 (D.C.Cir.1975); United States v. Liddy, 509 F.2d 428, 434-35 (D.C.Cir.1974). For the following reasons, we find that there was neither an abuse of discretion nor a showing that the defendant's rights were substantially prejudiced in this case.
23
1. On the question of whether the district court abused its discretion, we conclude that the voir dire did not leave the defendant with insufficient information to enable him to challenge for cause any juror who was biased against him.
24
First, West's claim that he could not ascertain the panel members' own current ties to law enforcement is not entirely accurate. The parties were given a list of the venire that included the occupations of all but six of the potential jurors. Of those six, four were over sixty-seven years old — justifying the district court's inference that they likely were retired — and the remaining two were struck during the voir dire. See Trial Tr. 11, 20 (Sept. 30, 2004). West therefore had current employment information for almost all of the potential jurors. And while it is true that neither the list nor the employment question (because of its compound structure) ensured that West would learn of panel members' (or their close friends' or families') previous employment in law enforcement, West never requested the kind of narrower question (for example, a question specifically about employment with the MPD) that the court might have been required to ask. See infra Part II.C.
25
Second, the voir dire provided West with additional opportunities to learn of law enforcement experience, or law enforcement bias, on the part of the panel. As noted in Part I, the court asked a total of twenty-nine questions, twenty-two of which were one-part questions that did not have the defect West has identified. See supra note 1. Among those was the question: "As a result of an experience that you either had personally or a close family member . . . or a close personal friend had[,] . . . would [you] be likely to give greater or lesser weight to a police officer's testimony just because they are a police officer?" Trial Tr. 34 (Sept. 29, 2004). The court also asked whether any member of the panel, or any panel member's close family or friend, had ever been "a victim of, a witness to, charged with, [or] arrested for a similar type of offense as the one charged in this case." Id. at 69. Other open-ended, one-part questions included whether any panel member knew the prosecutor, the defense attorney, the defendant, or any of the potential trial witnesses. And the court closed its questioning by asking what it called the "kitchen sink" question, inviting individual panel members to come forward if there was "any reason that you can think of, even though we haven't covered it in a question, that you believe is a basis for your inability to sit fairly, attentively, and impartially if selected as a juror." Id. at 80. As we have previously said, this kind of general inquiry about potential bias is important because it "call[s] upon each prospective juror, on his oath, to respond if he [feels] that any aspect of the case . . . might affect his impartiality." Peterson, 483 F.2d at 1228. Thus, West was not denied an inquiry into the subject of potential law enforcement bias.3
26
Third, and perhaps most important, the scope required of appropriate voir dire necessarily depends on the facts and circumstances of the particular case. Questions that probe a potential juror's views of the credibility of certain kinds of witnesses, for example, are more important in some cases than others. Here, as West's counsel conceded at oral argument, the credibility of the police witnesses was not at issue at trial. See Oral Arg. Tape at 8:27-:50. The defense did not dispute Detective McNamara's trial testimony that the bag at West's feet contained a loaded revolver, or that West said that the bag was his and that he had packed it himself. West's sole defense was that he did not have constructive possession of the gun because he did not intend to possess it. See Trial Tr. 83-87 (Oct. 1, 2004) (defense counsel's closing argument). Compare United States v. Gelb, 881 F.2d 1155, 1165 (2d Cir.1989) (finding no reversible error in the court's failure to ask about potential law enforcement bias when "the credibility of most of the official witnesses was not subject to extensive challenge"), with Brown v. United States, 338 F.2d 543, 545 (D.C.Cir.1964) (vacating a conviction where the prosecution's case depended on the credibility of its law enforcement witnesses and the court refused to ask whether potential jurors would give greater credence to the testimony of law enforcement officers).
27
Considering all of these factors together, we conclude that the voir dire in this case met the "the essential demands of fairness." Aldridge, 283 U.S. at 310, 51 S.Ct. 470. The court's questioning, considered as a whole, provided the defendant with sufficient information to enable him to challenge for cause any juror who might be biased against him.
28
2. On the question of whether — even if the district court had abused its discretion — West suffered substantial prejudice, we note the following circumstances in addition to those considered above.
29
First, the court asked numerous questions, of both the one-and two-part variety, that required the potential jurors to swear that they could be fair and impartial. Particularly important in this regard was the one-part, "kitchen sink" question noted above. In addition, at the conclusion of the case, the court expressly instructed the jurors that "[i]n no event" were they to give "either greater or lesser weight to the testimony of a witness merely because he is . . . a police officer." Trial Tr. 101 (Oct. 1, 2004). Given that West did not challenge the credibility of the law enforcement witnesses, those questions and that instruction served to mitigate any potential prejudice. Cf. Peterson, 483 F.2d at 1228 ("perceiv[ing] no prejudice resultant from the denial" of the defendant's specific voir dire request because, inter alia, the court instructed the jury against improper inferences and "posed a general question that should have elicited instances of bias, if any at all existed").
30
Second, the government's case against West can aptly be described as overwhelming. As just noted, West did not dispute any part of Detective McNamara's testimony. His only defense was that he did not intend to possess the gun. Since West did not testify — about his intent or any other topic — there was little if anything to this defense. See United States v. Victoria-Peguero, 920 F.2d 77, 85 (1st Cir. 1990) (refusing to reverse a defendant's conviction, despite the district court's error in not inquiring about law enforcement bias, in part because "the government's case was very strong").
31
Finally, and critically, West does not allege that any juror who sat on his case was actually biased against him. See United States v. Haldeman, 559 F.2d 31, 70-71 (D.C.Cir.1976). Nor can we presume that a juror's "connections to law enforcement . . ., standing alone," are "suffic[ient] to establish implied bias." United States v. Morales, 185 F.3d 74, 84 (2d Cir.1999). Indeed, we have held that, "absent a specific showing of bias, [even] a defendant accused of murdering a police officer is not entitled to a jury free of policemen's relatives." Caldwell, 543 F.2d at 1347. The court removed the juror (the Amtrak conductor) who said he knew Detective McNamara and could not be impartial, and it individually questioned the juror who came forward to say she knew Sergeant Murphy. As to this second juror, the court concluded, after careful questioning, that she could remain fair and impartial — a finding that West does not challenge on appeal.
32
In sum, considering the totality of the circumstances, we conclude that, even if the court had erred in posing the law enforcement employment question in compound form, there is no "showing that the right[ ] of the accused" to an impartial jury has "been substantially prejudiced thereby." Robinson, 475 F.2d at 380.4
B
33
West also argues that the district court's voir dire impaired his ability to exercise his peremptory challenges intelligently. While "[t]he peremptory challenge is part of our common-law heritage[,]" it is "not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); see Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273. 101 L.Ed.2d 80 (1988). Rather, in state cases it is a "creature of statute," Ross, 487 U.S. at 89, 108 S.Ct. 2273, and in federal cases a creature of Rule 24(b), which specifies the number of peremptories to which each side is entitled, see FED. R. CRIM. P. 24(b). Without defining the exact contours of the right, we have held that there "`must be sufficient information elicited on voir dire to permit a defendant to intelligently exercise . . . his peremptory challenges.'" Edmond, 52 F.3d at 1090 (quoting United States v. Barnes, 604 F.2d 121, 142 (2d Cir.1979)).
34
Although West points us to the Supreme Court's suggestion in Swain v. Alabama that "[t]he denial or impairment of the right [to peremptory challenges] is reversible error without a showing of prejudice," 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), he fails to mention the Court's subsequent retreat from that suggestion. In United States v. Martinez-Salazar, while finding it unnecessary to decide "what the appropriate remedy for a substantial impairment would be," the Court sharply observed that this "oft-quoted language in Swain was not only unnecessary to the decision in that case[,] . . . but was founded on a series of our early cases decided long before the adoption of harmless-error review." 528 U.S. at 317 n. 4, 120 S.Ct. 774. We need not decide whether the substantial impairment of a defendant's right to peremptory challenges requires automatic reversal, because we conclude that West's right was not substantially impaired. As we have discussed above, West had adequate — albeit imperfect — information with which to exercise his peremptory challenges.5
35
The examples that West cites in support of his impairment argument do not establish impairment at all. The failure of the first juror, the Amtrak conductor, to disclose his acquaintance with Detective McNamara was not the consequence of the district court's mode of questioning. On the one hand, it is unlikely that the conductor would have answered "yes" even if the employment question had been asked in one part, since the conductor was not employed by a law enforcement agency. On the other hand, the conductor should have answered "yes" to a one-part question that the district court did ask: whether any member of the panel knew any of the prospective witnesses, specifically including Detective McNamara.6
36
Nor has West shown that breaking the employment inquiry into two separate questions would have elicited an affirmative response from the second juror (the one with the friend who was a detective). The first part of that question asked whether any of the prospective jurors, or their close personal friends or family members, were employed by a law enforcement agency. But this juror testified that she had "grown apart" from her detective friend, suggesting — as the district court said — that she did not regard their current relationship as "close." Trial Tr. 8, 15-16 (Oct. 1, 2004). Because West objected only to the compound structure of the question, and not to its restriction to "close" friends, there is little support for his claim that a different mode of questioning would have given him more timely information about that juror.
37
Finally, West notes in the introductory portion of his brief — but not in the argument section — that he "was forced to use peremptory challenges on five jurors" who might otherwise have been struck for cause, "because he did not have sufficient knowledge to appropriately judge the level of their potential bias." Appellant's Br. 12. According to their juror questionnaires, one of the five was an FBI attorney, one was a Department of Justice attorney, one was a security officer, and two listed no employment at all. See Trial Tr. 9-20 (Sept. 30, 2004). No doubt the reason West does not argue this point is that the Supreme Court has foreclosed it. See Martinez-Salazar, 528 U.S. at 307, 120 S.Ct. 774 (holding that "a defendant's exercise of peremptory challenges . . . is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause").
C
38
Although we affirm West's conviction, our decision should not be taken as endorsing the use of compound questions with respect to subjects of substantial import in a particular case. The district court's discretion regarding voir dire is broad, but it is not boundless. The problem with using compound questions, as West correctly notes, is that it prevents the parties from learning the factual premise of the first part of the question, relying instead upon the juror's self-assessment of his or her impartiality. Yet, as we have cautioned in the past, "`whether a juror can render a verdict based solely on evidence adduced in the courtroom should not be adjudged on that juror's own assessment of self-righteousness without something more.'" Edmond, 52 F.3d at 1097 (quoting Silverthorne v. United States, 400 F.2d 627, 639 (9th Cir.1968) (alteration omitted)).7
39
This is not just a problem for the defense. Here, for example, the district court treated both sides even-handedly. Another compound question that it put to the venire was whether they, or their close friends or family, were "involved in any way in the defense of criminal cases." Trial Tr. 49 (Sept. 29, 2004). As with the law enforcement employment question, the court told the potential jurors not to answer unless they could not be "fair and impartial to both sides." Id. It is thus unsurprising that the prosecutor joined defense counsel in objecting to the use of compound questions, stating that the government "agree[d] that jurors should not be responsible for drawing their own conclusions about what makes them fair and impartial," id. at 58, and that this was "not a sufficient voir dire process to allow the attorneys to exercise their peremptories with any information about who we have in the pool," Trial Tr. 24 (Sept. 30, 2004).
40
We do not suggest that the trial court must use one-part questions on every subject, in every case. Whether and which one-part questions are required depends upon the context. Nonetheless, "[u]ndoubtedly there are occasions upon which further questioning is needed to permit the trial court to make its own judgment of a juror's impartiality based on objective facts, rather than relying exclusively on the jurors' subjective determinations of whether they [are] prejudiced." Caldwell, 543 F.2d at 1345. As we have said several times, "`[t]he possibility of prejudice is real, and there is consequent need for a searching voir dire examination, in situations where, for example, the case carries racial overtones, or involves other matters concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact.'" Orenuga, 430 F.3d at 1163 (quoting Robinson, 475 F.2d at 381 (footnotes omitted)); see also Mu'Min, 500 U.S. at 424, 111 S.Ct. 1899; Rosales-Lopez, 451 U.S. at 189, 101 S.Ct. 1629. In addition, "voir dire must be allowed on subjects with respect to which `bias and distorting influence have become evident, through experience with juries, and have come to be recognized as a proper subject for the voir dire.'" Orenuga, 430 F.3d at 1163 (quoting Robinson, 475 F.2d at 381 (italics omitted)). This circuit has held that "[t]he potential for jurors to attach undue weight to the testimony of law enforcement officials during trial is one such example." Orenuga, 430 F.3d at 1163 (citing Robinson, 475 F.2d at 381 (citing Brown, 338 F.2d at 544)).8
41
Another example is the problem of pretrial publicity, as to which this circuit has expressly disapproved the kind of compound questions asked in this case. In United States v. Edmond, the district court did not ask prospective jurors whether they had been exposed to pretrial publicity, but only whether those who had been exposed could "render a fair and impartial verdict." 52 F.3d at 1096, 1097. We identified the defect in this approach as follows:
42
This style of questioning hardly commends itself. The trial judge's inquiry failed to ask directly whether prospective jurors had been exposed to pretrial publicity; instead, the judge conflated that question with the broader inquiry whether, notwithstanding their presumed exposure to such publicity, they could render a verdict based solely on the evidence adduced at trial.
43
Not only does such questioning confuse the two lines of inquiry, but it allows jurors to assess their own impartiality before the court even has determined the extent of their exposure to the media. Indeed, this latter flaw alone can rise to the level of reversible error in cases where extreme pretrial publicity has inflamed the local community against the defendants.
44
Id. at 1097. In the end, we did not reverse the defendants' convictions, but only because we found that, "in the totality of the circumstances," the voir dire "was adequate to assure the impaneling of a jury that could render a judgment based solely on the evidence adduced at trial." Id. at 1098-99. Those circumstances included the fact that "the [d]istrict [c]ourt began voir dire in th[e] case by asking prospective jurors to fill out 20-page questionnaires . . . [that] asked about [their] exposure to various media, inquiring as to the newspapers and television programs most regularly read and viewed by each juror." Id. at 1096.9
45
Finally, and directly relevant here, in certain circumstances a more searching voir dire may be required with respect to a prospective juror's employment. In United States v. Segal, for example, the court vacated the defendants' convictions for bribing an Internal Revenue Service (IRS) agent, because the district court had refused to ask whether any prospective jurors or their immediate families worked for the IRS. See Segal, 534 F.2d 578, 581 (3d Cir.1976), cited with approval in Butler v. City of Camden, 352 F.3d 811, 816-17 (3d Cir.2003). The Third Circuit held:
46
[T]he defendants would reasonably need to know whether any member of the panel or any person in his family had ever been employed by the Internal Revenue Service. The possibility of lingering loyalty to the service, friendship of persons still employed there, or knowledge of agency procedures are all factors which counsel would weigh in deciding whether to challenge. . . . [P]ast employment by the specific agency prosecuting the case is a matter which should be explored upon a party's request. The refusal to do so requires that a new trial be granted.
47
Segal, 534 F.2d at 581.10 The analogous one-part question here would have been whether prospective jurors or their families had ever been employed by the MPD, or worked in drug interdiction. By contrast, the compound question that the court did ask required even an MPD narcotics officer to remain silent if he thought he could be fair and impartial. Had the defendant requested, and the district court refused to ask, such a one-part question, this would have been a much closer case. We need not reach that issue, however, because West never sought such a narrowed inquiry.
48
We are not unsympathetic to the desire of district courts to control their crowded dockets. But, as the government confirmed at oral argument, in this jurisdiction questions regarding a prospective juror's employment by law enforcement agencies or criminal defense attorneys are typically asked as one-part questions. See Oral Arg. Tape at 31:10.11 Such questions do not unduly extend the duration of voir dire. Certainly nothing prevents the court from requiring the parties to prioritize their requests, narrowing the number and scope of questions that they wish to have asked on a one-part basis.
49
We repeat that we find no error, reversible or otherwise, in the district court's conduct of voir dire. Nonetheless, we reiterate the caution of Edmond that "our approval of the trial court's actions is inextricably linked to the particular circumstances of this case." 52 F.3d at 1099. "We caution trial judges not to test the outer limits of their discretion" and, "[i]n particular, . . . to avoid asking compound questions of prospective jurors." Id. As we said in Edmond, "[w]here a defendant's constitutional right to a fair trial is at stake, the better practice is to err on the side of a voir dire that is simple, direct, and thorough." Id.
III
50
West's second challenge is to the district court's denial of his motion to suppress the gun found in his bag. "In reviewing the denial of a motion to suppress, we examine the district court's legal conclusions de novo, but apply a clearly erroneous standard to its underlying findings of fact." United States v. Pindell, 336 F.3d 1049, 1052 (D.C.Cir.2003) (internal quotation marks omitted). West's suppression argument is two-pronged: First, he argues that he was unlawfully seized when Detective McNamara "began interrogating him," which in turn tainted the subsequent search of his bag. Appellant's Br. 29. Second, he argues that he did not voluntarily consent — or consent at all — to that search.
51
The premise of West's seizure claim is that, in the close confines of the bus, he did not believe he could simply ignore the detective's questioning. As the Supreme Court has said, however, the "fact that an encounter takes place on a bus does not on its own transform standard police questioning of citizens into an illegal seizure." United States v. Drayton, 536 U.S. 194, 204, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Rather, the "proper inquiry `is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'" Id. at 202, 122 S.Ct. 2105 (quoting Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). The facts of this case are virtually indistinguishable from those of Drayton, and completely indistinguishable from those of United States v. Lewis, 921 F.2d 1294 (D.C.Cir.1990). In the latter, we held that the questioning of a defendant on a bus did not constitute a seizure where the officer wore plain clothes, spoke in a conversational tone, did not display a weapon, and returned the defendant's ticket after examining it. See id. at 1296-99. Indeed, it is a mark of the futility of West's argument that a principal case on which he relies, United States v. Cothran, 729 F.Supp. 153 (D.D.C.1990), was overturned on appeal in Lewis, 921 F.2d at 1300.
52
We turn next "from the question whether [the defendant was] seized to whether [he was] subjected to an unreasonable search, i.e., whether [his] consent to the suspicionless search was involuntary." Drayton, 536 U.S. at 206, 122 S.Ct. 2105. West testified that he never gave McNamara permission to personally search the bag at all. But McNamara testified that West did give him such permission, and the district court's "finding that this permission was given, based on demeanor and credibility evidence, cannot be said to be clearly erroneous." United States v. Brady, 842 F.2d 1313, 1315 (D.C.Cir.1988). With respect to the voluntariness of that consent, in "circumstances such as these, where the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts." Drayton, 536 U.S. at 206, 122 S.Ct. 2105. And just as the Supreme Court said in Drayton: "[T]he facts above suggest [that defendant's] consent to the search of [his] luggage . . . . was voluntary. Nothing [the detective] said indicated a command to consent to the search." Id. Rather, when West told McNamara that the bag was his, the detective "asked for [his] permission to check it[,] . . . indicating to a reasonable person that he or she was free to refuse." Id.
53
We therefore conclude that there was no Fourth Amendment violation and that the evidence regarding the gun was properly admitted at trial.
IV
54
Finding no error in the district court's conduct of voir dire or in its refusal to suppress evidence, we affirm the judgment of conviction.
55
Affirmed.
Notes:
1
Other one-part questions included whether any panel members: knew any of the trial lawyers or defendant West; were familiar with the facts of the case; were familiar with the immediate area where the offense took place; had opinions regarding defense attorneys or prosecutors that would cause them to favor one side or the other; or had any reason at all that would cause them to be unable to sit fairly and impartially. The court also asked whether any panel members, or their close friends or family, had: had an experience that would cause them to give greater or lesser weight to a police officer's testimony; been a victim of, a witness to, or charged with, an offense like that at issue in the case; or, as a result of having been a victim of, a witness to, or charged with a crime, could not be fair and impartial to both sides
2
The court also asked two-part questions about whether the panel members: were acquainted with other panel members; were currently studying or had previously studied law; had previously served as jurors; had previously served as grand jurors; or were currently or previously involved in crime prevention groups
3
Cf. Butler v. City of Camden, 352 F.3d 811, 816 (3d Cir.2003) (noting that the Third Circuit has "found error and reversed in cases where the district court barred all inquiry into a relevant subject matter designed to elicit a disqualifying prejudice").
4
See Victoria-Peguero, 920 F.2d at 84-85 (holding that whether error in failing to ask a question about bias in favor of law enforcement testimony requires reversal "hinges on such factors as the importance of the government agent's testimony to the case as a whole; the extent to which the question concerning the venire person's attitude toward government agents is covered in other questions . . .; the extent to which the credibility of the government agent-witness is put into issue; and the extent to which the testimony of the government agent is corroborated by non-agent witnesses" (internal quotation marks and citation omitted)).
5
In the interim betweenSwain and Martinez-Salazar, other circuits held that the denial or impairment of a litigant's right to peremptory challenges required automatic reversal. In no case, however, did a court hold that a litigant's rights were substantially impaired because of an inadequate voir dire. Cf., e.g., Carr v. Watts, 597 F.2d 830, 833 (2d Cir.1979) (finding reversible impairment where a judge's practice of refusing to allow counsel to carry over unused peremptory challenges prevented the litigant "from using his remaining peremptory challenge which was his as a matter of statutory right"); United States v. Ricks, 776 F.2d 455, 461 (4th Cir.1985) (finding reversible impairment where confusion about the order in which jurors would be selected rendered the defendant's peremptory strikes "worthless because they were all exercised with respect to veniremen who were not considered for selection as jurors").
6
In light of his subsequent statement that he could not be fair and impartial, the conductor also should have answered "yes" to the court's one-part "kitchen sink" question. Trial Tr. 80 (Sept. 29, 2004)
7
As Chief Justice Marshall said at the trial of Aaron Burr: "[A] man . . . may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice."United States v. Burr, 25 F. Cas. 49, 50 (No. 14,692) (C.C.D.Va. 1807).
8
In the instant case, the district court followed this precedent, asking the potential jurors, in one-part form, whether they "would be inclined to give greater or lesser weight to a police officer's testimony just because they are a police officer." Trial Tr. 34 (Sept. 29, 2004)
9
See United States v. Beckner, 69 F.3d 1290, 1293-95 (5th Cir.1995) (reversing a defendant's conviction and remanding for a new trial where the district court "did not ask jurors what information they had read" about the case, but only whether "anyone had been so affected by pretrial publicity that he or she could not be completely fair and impartial"); Silverthorne, 400 F.2d at 638-39 (requiring a new trial in a case of pervasive pretrial publicity because the "trial court made no effort to ascertain what information the jurors had accumulated," but merely went "through the form of obtaining jurors assurances of impartiality" (internal quotation marks and citation omitted)).
10
Cf. Lawes, 292 F.3d at 131 (finding no error because, although the court refused to ask whether prospective jurors had relationships or friendships with law enforcement officers, the questions that were "asked would reveal whether the potential juror or a member of the juror's household was in law enforcement, the most compelling circumstances with regard to the need for further inquiry").
11
This also appears to be the case in other circuitsSee, e.g., Lawes, 292 F.3d at 131 (noting that the district court's questions "reveal[ed] whether the potential juror or a member of the juror's household was in law enforcement"); United States v. Nash, 910 F.2d 749, 754 (11th Cir.1990) (noting that the district court "asked the veniremen whether they, their friends, or their family were employed in law enforcement"). | 01-03-2023 | 02-05-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/4534821/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10142
Plaintiff-Appellee, D.C. No.
5:16-cr-00189-LHK-1
v.
SUNITHA GUNTIPALLY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted May 13, 2020**
San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District
Judge.
Sunitha Guntipally appeals the district court’s denial of her motion to
withdraw her guilty plea. Following the denial, the district court imposed a 52-month
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
sentence on the one count to which Guntipally had pled guilty—conspiracy to
commit visa fraud, use of false documents, mail fraud, obstruction of justice, and
witness tampering in violation of 18 U.S.C. § 371. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
We assume for the purposes of this appeal (without so holding) that Guntipally
did not waive her ability to appeal her conviction, the judgment, or orders of the
district court. Instead, we hold that Guntipally’s appeal fails on the merits. She
contends that the district court abused its discretion in denying her motion to
withdraw her guilty plea and by not conducting an evidentiary hearing relating to
her allegations that her guilty plea was a result of ineffective assistance of counsel.
We disagree.
We review a district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009).
We also review a district court’s decision as to whether to conduct an evidentiary
hearing for abuse of discretion. See United States v. Smith, 155 F.3d 1051, 1063 n.18
(9th Cir. 1998). Abuse of discretion occurs where the court “rests its decision on an
inaccurate view of the law, . . . or on a clearly erroneous finding of fact.” Ensminger,
567 F.3d at 590 (internal quotation marks and citations omitted). A district court’s
finding of fact is clearly erroneous only if it is not plausible in light of the record
viewed in its entirety. Anderson v. City of Bessemer City, 470 U.S. 564, 573–74
2
(1985).
The district court entered a very thorough 47-page order explaining why
Guntipally’s codefendants’ motions to withdraw their pleas, and Guntipally’s
allegations of ineffective assistance of counsel, were not “fair and just reason[s] for
[allowing Guntipally’s] withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The district court
applied the correct legal standard in concluding that Guntipally did not raise reasons
for withdrawal that would have “plausibly motivated a reasonable person in [her]
position not to have pled guilty had [she] known about [them] prior to pleading.”
United States v. McTiernan, 546 F.3d 1160, 1168 (9th Cir. 2008) (quoting United
States v. Garcia, 401 F.3d 1008, 1011–12 (9th Cir. 2005)). The district court’s
findings of fact are plausibly based on the record. We find no abuse of discretion.
The district court also did not abuse its discretion in declining to conduct an
evidentiary hearing. As the district court explained, the record provided sufficient
evidence to show that Guntipally’s claims of ineffective assistance of counsel were
unfounded. See United States v. Gonzalez, 113 F.3d 1026, 1028 (9th Cir.1997)
(stating that a district court “must conduct an inquiry adequate to create a ‘sufficient
basis for reaching an informed decision’” (citation omitted)).
AFFIRMED.
3 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5902942/ | Order of disposition, Family Court, Bronx County (Fernando H. Silva, J.), entered on or about February 17, 2012, which, following a fact-finding determination that respondent mother abandoned her child, terminated her parental rights to the child, and transferred guardianship and custody of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.
The agency established by clear and convincing evidence that respondent abandoned her child by failing to contact the child or the agency during the six-month period immediately preceding the filing of the petition, although able to do so, and that she was not discouraged from doing so by the agency (Social Services Law § 384-b [5] [a]; Matter of Annette B., 4 NY3d 509, 513-514 [2005]).
The court properly concluded that the child’s best interests would be better served by termination of respondent’s parental rights than by issuing a suspended judgment, because there was no evidence that she had a realistic and feasible plan to provide an adequate and stable home for the child (see Matter of Donelle Thomas M., 4 AD3d 137, 138 [1st Dept 2004]). Concur—Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902947/ | Judgment, Supreme Court, New York County (Debra A. James, J.), entered March 1, 2012, dismissing the complaint pursuant to an order, same court and Justice, entered June 21, 2011, which granted defendant’s cross motion for summary judgment dismissing the complaint, and denied plaintiffs motion to strike or preclude as moot, unanimously affirmed, with costs.
We find that the express language of the offering plan, incorporated by reference into the purchase agreement entered into by the parties, limits defendant’s obligation under the purchase agreement to making repairs, or alternatively, recompensing for repairs made (see 430 W. 23rd St. Tenants Corp. v 23rd Assoc., 155 AD2d 237, 238 [1st Dept 1989]). To construe the purchase agreement otherwise would, in effect, render the express language of the offering plan meaningless (see Diamond Castle Partners IV PRC, L.P. v IAC/ InterActiveCorp, 82 AD3d 421, 422 [1st Dept 2011]). Accordingly, plaintiffs claims seeking rescission of the purchase agree*467ment and monetary damages for loss of rental income are barred by the express language of the offering plan.
In addition, to the extent plaintiff argues that defendant fraudulently misrepresented that it would make repairs under the agreement, such an allegation is insufficient to state a claim for fraudulent inducement (see Sass v TMT Restoration Consultants Ltd., 100 AD3d 443, 443 [1st Dept 2012]).
We have considered plaintiffs remaining arguments and find them unavailing. Concur—Sweeny, J.P., Saxe, DeGrasse, AbdusSalaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902948/ | Order of the Supreme Court, New York County (Alvin F. Klein, J.), entered June 5, 1987, which, inter alia, granted the defendants-respondents’ cross motion for a protective order striking 12 interrogatories addressed to each of the individual defendants, is unanimously reversed, to the extent appealed from, on the law, without costs, and the defendants are directed to answer the 12 interrogatories.
Plaintiff Ocean to Ocean Seafood Sales, Inc. (hereinafter Ocean) commenced this action to recover the sales price for seafood sold and delivered to defendant-respondent Trans-O-Fish & Seafood Co., Inc. (hereinafter Trans-O-Fish). Defendants-respondents Larocca and Graff are officers and manag*266ing agents of Trans-O-Fish. The complaint sets forth various causes of action against the corporation and the above-named officers, all related to the alleged insolvent nature of the corporation, defendants’ knowledge of that insolvency and their intent to defraud Ocean and other creditors. Ocean served 30 interrogatories upon each of the individual defendants, and defendants moved to vacate 12 of these 30 interrogatories as burdensome and irrelevant. The motion court granted defendants’ request to strike the 12 objected-to interrogatories.
CPLR 3101 provides for very broad discovery of any evidence that is "material and necessary” to the prosecution or defense of an action. In this case there is not the slightest doubt that the stricken interrogatories seek evidence that would be material and necessary in the prosecution of this action, since they bear directly on the critical issues of the solvency or insolvency of Trans-O-Fish at the time of its purchase of goods from plaintiff and the knowledge of the individual defendants as to the corporation’s alleged financial instability. Because the interrogatories are materially relevant, and defendants failed to substantiate their conclusory claims that the interrogatories are burdensome and irrelevant, we conclude that the motion court erred in granting the protective order as to these 12 interrogatories. Accordingly, defendants are directed to answer the interrogatories. Concur —Murphy, P. J., Sullivan, Carro, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902950/ | Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about May 1, 1987, unanimously affirmed. Respondent shall recover of appellant $50 costs and disbursements of this appeal. Motion by appellant to enlarge the record on appeal to include a supplemental appendix granted. No opinion. Concur — Sullivan, J. P., Ross, Asch, Milonas and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902951/ | Judgment, Supreme Court, New York County (Debra A. James, J.), entered March 1, 2012, dismissing the complaint pursuant to an order, same court and Justice, entered June 21, 2011, which granted defendant’s cross motion for summary judgment dismissing the complaint, and denied plaintiffs motion to strike or preclude as moot, unanimously affirmed, with costs.
We find that the express language of the offering plan, incorporated by reference into the purchase agreement entered into by the parties, limits defendant’s obligation under the purchase agreement to making repairs, or alternatively, recompensing for repairs made (see 430 W. 23rd St. Tenants Corp. v 23rd Assoc., 155 AD2d 237, 238 [1st Dept 1989]). To construe the purchase agreement otherwise would, in effect, render the express language of the offering plan meaningless (see Diamond Castle Partners IV PRC, L.P. v IAC/ InterActiveCorp, 82 AD3d 421, 422 [1st Dept 2011]). Accordingly, plaintiffs claims seeking rescission of the purchase agree*467ment and monetary damages for loss of rental income are barred by the express language of the offering plan.
In addition, to the extent plaintiff argues that defendant fraudulently misrepresented that it would make repairs under the agreement, such an allegation is insufficient to state a claim for fraudulent inducement (see Sass v TMT Restoration Consultants Ltd., 100 AD3d 443, 443 [1st Dept 2012]).
We have considered plaintiffs remaining arguments and find them unavailing. Concur—Sweeny, J.P., Saxe, DeGrasse, AbdusSalaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902959/ | Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or about April 5, 2011, which granted defendants Jose Tambunting, Miguel Tambunting and Jose Tambunting, Jr.’s motion to dismiss the second and fourth causes of action as *468against them, and order, same court and Justice, entered on or about January 13, 2012, which, upon renewal, adhered to the original determination, unanimously affirmed, with costs.
Plaintiffs allege in support of the second and fourth causes of action that they revoked the powers of attorney they had given their father, who nevertheless transferred their interests in an apartment to their brothers, and that the brothers knew that their father was without authority to effect the transfer. These causes of action cannot be sustained, because plaintiffs failed to record their alleged revocations in the county where the powers of attorney, which contained the power to convey real property, were recorded (see Real Property Law §§ 294 [1]; 326). Concur— Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1491166/ | 100 S.W.3d 847 (2003)
Marty Paul MAYFIELD, Petitioner-Respondent,
v.
DIRECTOR OF REVENUE, Respondent-Appellant.
No. 24902.
Missouri Court of Appeals, Southern District, Division Two.
February 25, 2003.
Petition for Rehearing and Transfer Denied March 18, 2003.
Application for Transfer Denied April 22, 2003.
*848 Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, Special Asst. Atty. Gen., for Appellant.
No brief filed by Respondent.
JAMES K. PREWITT, Presiding Judge.
Director appeals the reinstatement of Respondent's driving privileges following a finding by the trial court that "Director failed to provide explicit proof that the requirements of § 577.041 [RSMo 2000] were met."
The judgment of the trial court is presumed to be correct and must be affirmed under any reasonable theory supported by the evidence unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Kidd v. Wilson, 50 S.W.3d 858, 860, 862 (Mo.App. 2001). A trial court may accept or reject all, part or none of the testimony of any witness, and this Court must defer to the ability of the trial court to judge the credibility of a witness and ascertain the facts. Id. at 863.
"A trial court's judgment in a § 577.041 revocation case is to be affirmed under any reasonable theory supported by the evidence." Jarrell v. Director of Revenue, 41 S.W.3d 42, 46 (Mo.App.2001). In determining the sufficiency of evidence, this Court views the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's judgment and disregards all contrary evidence and inferences drawn therefrom. *849 Reece v. Director of Revenue, 61 S.W.3d 288, 291 (Mo.App.2001).
On or about February 29, 2000, Officer Jason Long of the West Plains Police Department stopped a maroon station wagon bearing truck license plates registered to a 1980 Chevy pickup. The driver, Marty Paul Mayfield, was accompanied by the owner of the vehicle and another passenger. Both the officer and Mayfield testified the owner was intoxicated.
Officer Long observed that Mayfield's eyes were watery and bloodshot. Long also detected "a very strong odor of intoxicants," and noticed that Mayfield seemed unbalanced when standing. Mayfield admitted he had consumed three beers prior to the stop.
At Long's request, Mayfield submitted to three field sobriety tests: the one-legged stand test; the walk-and-turn test; and the gaze nystagmus test. Long determined that Mayfield failed all three. He subsequently arrested Mayfield and requested that Mayfield submit to a breathalyzer test.
Mayfield made two attempts to take the test. Long testified that Mayfield was blowing out of the sides of his mouth and would not sustain a continuous, steady stream of air to enable the machine to produce a valid measurement. Long deemed the failures to provide adequate samples as a refusal to submit and he issued to Mayfield the notice of revocation.
Mayfield petitioned for a review of the revocation and applied for hardship driving privileges and a stay of the revocation. In his petition, Mayfield alleged, in part, that he did not receive a proper request by the officer to submit to a chemical test and that he did not refuse to submit to a chemical test. The Director answered Mayfield's petition, attaching as Exhibit A the Department of Revenue's Forms 4323 and 2389, the arresting officer's narrative, copies of two Uniform Complaint and Summons issued to Mayfield, and the Department's Datamaster Maintenance Report, Certificate of Analysis and Evidence Ticket.
On January 17, 2002, a hearing was held on Mayfield's petition, after which the trial court took the matter under advisement. As provided by § 577.041.4, an assistant prosecuting attorney appeared on Director's behalf. Petitioner was represented by counsel. Pursuant to an order filed January 28, 2002, the trial court granted the parties five additional days to file suggestions with the trial court on the issue of whether the Director met her burden in providing sufficient evidence that Officer Long complied with the notice requirements under § 577.041, RSMo 2000. Judgment was filed March 14, 2002, ordering the Director to reinstate the driving privileges of Mayfield.
Upon a petition for review of revocation of driving privileges for a refusal to submit to a chemical test, the trial "court shall determine only: (1) Whether or not the person was arrested or stopped; (2) Whether or not the arresting officer had: (a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition;. . . and (3) Whether or not the person refused to submit to the test." § 577.041.4, RSMo 2000. Should the trial court determine any issue not to be in the affirmative, the Director shall be ordered to reinstate the driver's license. § 571.041.5, RSMo 2000.
Here, the trial court found in favor of the Director on the first two issues, but concluded "that the minimum due process requirements of § 577.041.1 RSMo have not been met." The trial court further found, in part:
*850 At trial in this case, the arresting officer testified that he read [Mayfield] the "implied consent" off the "alcohol influence report." Unfortunately, neither the alcohol influence report nor the specific language of the implied consent form were placed into evidence. Mayfield did not admit he had been read the "implied consent." He denies that he refused to take the breathalyzer test.
. . . .
In this case, the Director failed to provide explicit proof that the requirements of § 577.041.1 were met. Unlike the facts of Zimmerman[ v. Director of Revenue], [988 S.W.2d 583 (Mo.App.1999)] Mayfield made no admission that the Implied Consent Law was read. The Director offered no evidence Mayfield waived his claim to more explicit proof of the contents of the warnings.... The Director failed to produce sufficient evidence to meet her burden of proof.
In its sole point relied on, Director contends that the trial court "erred in setting aside the revocation of Respondent's driving privilege because the revocation was proper, in that the evidence indicating Respondent was read the `Implied Consent' off the Alcohol Influence Report was sufficient to establish compliance with § 577.041.1 in lieu of Respondent objecting to this testimony or otherwise being prejudiced by a deficiency in the warning."
Missouri's "implied consent law," § 577.020, provides that "[a]ny person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to ... a chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person's blood...." Section 577.020.1, RSMo.
Section 577.041.1 requires that certain information must be provided to an arrestee who is requested to submit to a chemical test pursuant to § 577.020. "The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test." § 577.041.1. "No refusal is valid if this statutorily necessary information is not conveyed." Hinton v. Director of Revenue, 990 S.W.2d 207, 208 (Mo.App. 1999).
"[I]mplied consent can be voluntarily withdrawn, but an officer must warn an individual of the consequences of such withdrawal or refusal, i.e., revocation of their license for one year." Zimmerman v. Director of Revenue, 72 S.W.3d 634, 636 (Mo.App.2002). "No refusal is valid if the arresting officer's `request' omits statutorily necessary information." Brown v. Director of Revenue, 34 S.W.3d 166, 171 (Mo. App.2000). Revocation is conditioned upon an officer making a "statutorily sufficient `request'" that a driver submit to chemical testing. McMaster v. Lohman, 941 S.W.2d 813, 816 (Mo.App.1997).
At the hearing on Mayfield's petition for review, Director presented testimony from the arresting officer and entered into evidence Mayfield's driving record, designated as Exhibit A. However, the Department of Revenue's Form 2389, the Alcohol Influence Report containing the "implied consent warning" was not introduced into evidence at trial.
Regarding his compliance with § 577.041.1's warnings requirement, the arresting officer testified as follows:
Q. [by assistant prosecutor] What, if anything, did you do when you got into the police station?
*851 A. "At that time I read him his Miranda rights, and he advised that he understood those. And then I also read him Implied Consent off the Alcohol Influence Report, and he advised that he understood that. And he agreed to take the test."
"[T]he burden of proof is on the Director in reviews of revocation due to refusal to submit to chemical tests." Bennett v. Director of Revenue, 889 S.W.2d 166, 171 (Mo.App.1994). "It is implicit in the Director's burden that he proves a proper refusal of the chemical test." Brown, 34 S.W.3d at 170. "Director must establish that the driver was properly informed under the Implied Consent Law in order to prove that the driver's refusal to take the blood alcohol test warrants revocation of his or her license." Kidd, 50 S.W.3d at 863.
"The director is required ... to put into evidence that which the fact finder is asked to consider." Wampler v. Director of Revenue, 48 S.W.3d 32, 35 (Mo. 2001) (overruling Lane v. Director of Revenue, 996 S.W.2d 117, 118 (Mo.App.1999), "[t]o the extent that Lane finds that records filed by the director are sufficient, although the records are never introduced into evidence, it should no longer be followed.") "Merely filing a document `does not put it before the court as evidence.'" Wampler, 48 S.W.3d at 35, citing Hopkins v. Hopkins, 664 S.W.2d 273, 274 (Mo.App. 1984).
The trial court implicitly made a credibility determination when it entered judgment against Director. Specifically, it disbelieved Officer Long's testimony that he read the implied consent language to Respondent, which was its prerogative. Consequently, there was no evidence that the required warnings were provided to Mayfield. As such, the trial court did not err in finding Director failed to meet her burden of proof.
The judgment is affirmed.
RAHMEYER, C.J., and SHRUM, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5902961/ | Application for coram nobis and other relief denied. Concur — Kupferman, Sandler, Sullivan and Kassal, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902962/ | Murphy, P. J.,
dissents and would grant the writ to the extent of affording defendant a new appeal only on the issues pertaining to the propriety of his sentence. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902964/ | Appeal from a judgment of the Supreme Court, New York County (Luis M. Ñeco, J.), rendered on May 27, 1983, convicting defendant, upon his plea of guilty, of burglary in the second degree and sentencing him as a predicate felony offender to an indeterminate term of impris*270onment of from 3 Vi to 7 years held in abeyance pending confirmation from defense counsel that he has furnished defendant with a copy of his brief in accordance with People v Saunders (52 AD2d 833) and Anders v California (386 US 738). In partial compliance with those cases, counsel has advised this court that there are no nonfrivolous issues to be raised on defendant’s behalf in connection with the taking of his plea of guilty resulting in his conviction. However, we must hold the matter undetermined pending proof that defendant has received a copy of this Anders-Saunders brief and that he does not desire to file a pro se brief on his own behalf. Concur— Sandler, J. P., Carro, Kassal and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902965/ | Judgment, Supreme Court, Bronx County (John Byrne, J.), rendered on January 10, 1986, 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 — Sullivan, J. P., Asch, Milonas, Kassal and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902968/ | Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 26, 1987, which granted defendant’s motion for a change of venue from Bronx County to Dutchess County, is unanimously reversed, on the law, on the facts, and in the exercise of discretion, and the motion is denied, without costs.
Appeal from order of the Supreme Court, Bronx County (Bertram Katz, J.), entered July 13, 1987, which denied plaintiffs’ motion for reargument and/or renewal, is treated as one for reargument, and dismissed as nonapealable, without costs.
On October 12, 1985, at approximately 10:00 p.m., Mr. Michael Schneeweiss (Mr. Schneeweiss) and Mrs. Joan Schneeweiss (Mrs. Schneeweiss) were walking near the intersection of Old Route 22 and East Duncan Hill Road in Dover Plains, Dutchess County, New York, when they were struck by a motor vehicle, which was operated by Mr. Lloyd H. Pelkey (Mr. Pelkey). Since Mr. and Mrs. Schneeweiss were injured, a Dutchess County volunteer ambulance transported them to Sharon Hospital, which was located in Sharon, Connecticut. Following two days of treatment at Sharon Hospital, they were moved by ambulance to Columbia Presbyterian Medical Center (Columbia Presbyterian) in New York County, where they were hospitalized from October 14 to November 1, 1985.
Mr. and Mrs. Schneeweiss each suffered multiple comminuted fractures of both legs, which required surgery. In addition, Mrs. Schneeweiss suffered a fractured left collarbone, and a postoperative pulmonary embolism. As a result of her injuries, on November 20, 1985, Mrs. Schneeweiss was readmitted to Columbia Presbyterian for another week of hospitalization. Thereafter, in March 1987, Mrs. Schneeweiss underwent further leg surgery at the Hospital for Joint Diseases, Orthopedics Institute, in New York County.
In January 1986, Mr. and Mrs. Schneeweiss (plaintiffs) commenced an action in Bronx County, where they then resided, against Mr. Pelkey (defendant) to recover damages for *272personal injuries and loss of services. Defendant answered, and demanded that venue be changed to Dutchess County, but plaintiffs refused to consent.
Subsequently, in March 1987, defendant moved, pursuant to CPLR 510 and 511, to change the venue to Dutchess County. The IAS court granted defendant’s motion.
The defendant contends, in substance, that venue should be placed in Dutchess County, where the accident occurred and for the convenience of the following possible Dutchess County witnesses: Mr. and Mrs. John Pollack, who were not eyewitnesses, but who allegedly saw plaintiffs in the vicinity of the accident, the volunteer ambulance attendants, who transported the plaintiffs from the accident scene to the Connecticut hospital, and, Police Sergeant Corbett, who made out the accident report.
While defendant’s "factual showing concerning the convenience of witnesses has superficial logic, [it] does not withstand close scrutiny” (Wecht v Glen Distribs. Co., 112 AD2d 891, 892 [1st Dept 1985]), since our review of the record indicates that the defendant has not convincingly set forth "[t]he materiality of [these] witnesses’ testimony” (Farra v Hesseltine, 134 AD2d 788, 789 [1987]).
Although "[t]he general rule is that a transitory action * * * should be tried in the county in which the cause of action arose (Slavin v Whispell, 5 AD2d 296 [1st Dept 1958])” (Chaewsky v Siena Coll., 100 AD2d 753 [1st Dept 1984], appeal dismissed 62 NY2d 942 [1984]), that rule is not inflexible, since other considerations on occasion outweigh it, such as when a preponderance of material witnesses are located in a county different from the one in which the accident happened (McGuire v General Elec. Co., 117 AD2d 523, 524 [1st Dept 1986]); and/or, when the motion to change venue is not made with "due diligence” (Fickling v Carter, 91 AD2d 578, 579 [1st Dept 1982]).
In view of the fact that, other than for the two days they were hospitalized in Connecticut, all of the plaintiffs’ treating physicians are located in New York County, we find that the convenience of these New York County material witnesses tips the scales in favor of retaining venue in Bronx County. It has been held that the convenience of treating physicians is a strong factor in favor of retaining venue in a county other than the one in which the accident took place (see, Messinger v Festa, 94 AD2d 792, 793 [1983]). We further note that defendant fails to set forth any of the testimony of his witnesses, as *273required (Stavredes v United Skates, 87 AD2d 502 [1st Dept 1982]).
Another factor, which favors retaining venue in Bronx County, is defendant’s lack of due diligence. Even though issue was joined almost a year ago, our examination of the record indicates that defendant delayed, without meritorious explanation, moving to change venue until after a preliminary conference court order had directed the plaintiffs to file a note of issue and certificate of readiness.
Based upon our analysis, supra, which indicates that the convenience of material witnesses and the ends of justice will be promoted by the retention of venue in Bronx County, we find the IAS court abused its discretion in changing venue.
Accordingly, we reverse and deny the motion. Concur—Murphy, P. J., Ross, Carro, Kassal and Ellerin, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5902969/ | Appeal from order of protection, Family Court, New York County (Susan Knipps, J.), entered on or about October 13, 2010, which, among other things, directed that respondent father stay away from the mother and her home, and refrain from communicating with her by any means, until December 1, 2010, unanimously dismissed, without costs, as moot. Appeal from permanency hearing order (same court and Judge), entered on or about December 2, 2009, unanimously dismissed, without costs, as abandoned.
Since the order of protection being challenged has expired by its own terms, the appeal is moot (see Matter of Louis N. [Dawn O.], 98 AD3d 918 [1st Dept 2012]; Matter of Brandon M. [Luis M.], 94 AD3d 520 [1st Dept 2012]). Were we to reach the merits, we would find that the Family Court’s order was authorized by Family Court Act § 1056 in the context of a neglect proceeding based on allegations of domestic violence in the child’s presence, and that appellant’s evidentiary objection is unpreserved. Moreover, the mother’s testimony corroborated the statements in the 18 domestic incident reports admitted into evidence. Concur— Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ. | 01-03-2023 | 01-13-2022 |
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