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https://www.courtlistener.com/api/rest/v3/opinions/5903085/ | Appeal by the defendant from two judgments of the Supreme Court, Queens County (Rotker, J.), both rendered January 27, 1983, convicting him of attempted robbery in the second degree under indictment No. 2351/81 and attempted robbery in the first degree under S.C.I. No. 379/83, upon his pleas of guilty, and imposing sentences. The appeals bring up for review the denials, in part, after hearings (Naro, J., and Clabby, J.), of those branches of the defendant’s omnibus motions which were to suppress certain identification testimony.
Ordered that the judgments are affirmed.
The defendant was indicted under indictment 2351/81 for a robbery that had occurred August 29, 1981. Justice Naro held that the defendant was arrested without probable cause and that the showup following this unlawful arrest must be suppressed. However, he also held that the victim had an independent source for making an in-court identification. These rulings were correct (see, United States v Crews, 445 US 463; People v White, 117 AD2d 127, lv denied 68 NY2d 818).
The defendant was also indicted under indictment 2468/81 for two robberies that had occurred on July 22, 1981, and August 27, 1981, respectively. Following a Wade hearing, Justice Clabby held that the identification procedure was not suggestive and further that each of the victims had an independent source for making an in-court identification. These rulings were also correct. It was error to indicate that the victims would be permitted to testify as to their identifications of the defendant from photographs (see, People v Lindsay, 42 NY2d 9; People v Caserta, 19 NY2d 18). However, this erroneous prospective evidentiary ruling did not affect the defendant’s entry of a plea of guilty to robbery in the second degree under indictment No. 2351/81 to cover indictment No. 2468/ 81.
*404The defendant pleaded guilty to the reduced charge of attempted robbery in the second degree for the robbery of August 29, 1981, to cover all charges in indictments Nos. 2468/81 and 2351/81. Under the circumstances, the plea allocution was sufficient (People v Clairborne, 29 NY2d 950). Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903086/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Meyerson, J.), rendered February 20, 1986, convicting him of robbery in the first degree, grand larceny in the third degree, criminal possession of stolen property in the third degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
Despite the existence of legally sufficient evidence to support the defendant’s conviction of the above crimes, and the fact that the verdict was not against the weight of the evidence, we find that several instances of prosecutorial misconduct during the People’s summation deprived him of a fair trial.
Initially, the record demonstrates that the prosecutor improperly used a prior inconsistent statement of the defendant, which was admissible solely for the purpose of impeachment, as evidence-in-chief of the defendant’s guilt of the crimes charged in the indictment (see, People v Gale, 138 AD2d 401 [decided herewith]).
Furthermore, the prosecutor erred in arguing to the jury that the defendant’s counsel had not discussed his client’s testimony during the defense summation because the testimony was "a crock” and "a lie”. Comments of this nature which clearly suggest that counsel does not believe his own client’s testimony have been condemned repeatedly by the courts due to the substantial and unfair risk of prejudice which they create (see, e.g., People v Jones, 74 AD2d 854; People v Kane, 57 AD2d 575; People v Tatum, 54 AD2d 950; People v Fluker, 51 AD2d 1045). Moreover, the prejudice resulting from this remark was exacerbated by the trial court’s overruling of the defense counsel’s prompt objection and by its statement that the comment was a permissible expression of the prosecutor’s personal opinion (see generally, People v Ashwal, 39 NY2d 105).
*405Similarly, we note that the prosecutor further erred in advancing his personal opinions regarding the merits of the case at numerous points in the summation (see, People v Ortiz, 125 AD2d 502), in repeatedly accusing the defendant of lying on the witness stand (see, People v Ortiz, supra; People v Ricchiuti, 93 AD2d 842; People v Alston, 77 AD2d 906), and in suggesting, without any evidence in the record of an erroneous translation, that the discrepancies in the complainant’s testimony were due to the fact that the complainant was required to testify through an interpreter (see, People v Rivers, 96 AD2d 874). While some of the prosecutor’s comments might have been justified in some measure by the defense counsel’s summation comments (see, e.g., People v Marks, 6 NY2d 67, cert denied 362 US 912), we conclude that the repeated and pervasive improprieties in this case exceeded the realm of reasonable response to the defense counsel’s arguments (see, People v Wandoloski, 128 AD2d 568) and necessitate a reversal of the defendant’s judgment of conviction.
In light of the foregoing, we do not consider the defendant’s additional contentions. Bracken, J. P., Weinstein, Rubin and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903087/ | Order, Supreme Court, New York County (Donna M. Mills, J.), entered May 25, 2012, which, to the extent appealed from, granted defendants’ motion to dismiss the complaint as against defendant James O’Callaghan for lack of personal jurisdiction, granted the motion as to defendant Eckersley O’Callaghan Structural Design (EOC) (with O’Callaghan, the UK defendants) to the extent of referring the issue of long-arm jurisdiction pursuant to CPLR 302 (a), granted the motion to dismiss the first cause of action as against defendant Philip Khalil, denied the motion to dismiss the fifth through eleventh causes of action, and denied the motion to disqualify third-party defendants from serving as counsel for plaintiff in the main action, and granted third-party defendants’ motion to dismiss the third-party complaint, unanimously modified, on the law, to deny defendants’ motion to dismiss the complaint as against the UK defendants for lack of personal jurisdiction, and to grant the motion to dismiss the tenth and eleventh causes of action as against the UK defendants, and otherwise affirmed, without costs.
The complaint alleges that Khalil, an employee of plaintiff, and employees of EOC, including O’Callaghan, worked together to use plaintiff’s confidential and proprietary information to divert work for Apple Inc., including a project for the Apple Store on Broadway in Manhattan, from plaintiff to Khalil and EOC. These allegations are sufficient to establish that the UK defendants transacted business in New York, through Khalil as their agent, and therefore to invoke jurisdiction over them pursuant to CPLR 302 (a) (1) (see New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463 [1st Dept 2012]).
The allegations also are sufficient to establish that the UK defendants engaged in tortious conduct in New York, again acting through Khalil as their agent, and therefore to invoke jurisdiction pursuant to CPLR 302 (a) (2) (see Small v Lorillard Tobacco Co., 252 AD2d 1, 17 [1st Dept 1998], affd 94 NY2d 43 [1999]). This is so despite the motion court’s dismissal of the conspiracy claim (the first cause of action) as against Khalil (see Reeves v Phillips, 54 AD2d 854 [1st Dept 1976]).
*483We do not find that subjecting the UK defendants to jurisdiction in New York would offend due process (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]).
The allegations that the UK defendants were aware that Khalil was plaintiff’s full-time employee, and hired him and caused him to breach his duty to plaintiff, inter alia, by inducing him to disclose plaintiffs confidential and proprietary information, state a cause of action for tortious interference with plaintiff’s business relationship with Khalil (see Zimmer-Masiello, Inc. v Zimmer, Inc., 159 AD2d 363, 366 [1st Dept 1990], lv dismissed 76 NY2d 772 [1990]).
The complaint alleges that Khalil used plaintiffs resources to do work for EOC, including accessing and forwarding to the UK defendants confidential information such as the amount of plaintiffs bids on pending contracts, as well as “innovative technical details” and “specialty glass details” that plaintiff had “custom-designed and developed” for several specified projects. These allegations state causes of action for unfair competition and misappropriation of trade secrets (see Eagle Comtronics v Pico Prods., 256 AD2d 1202, 1203 [4th Dept 1998]; Sylmark Holdings Ltd. v Silicone Zone Intl. Ltd., 5 Misc 3d 285, 287 [Sup Ct, NY County 2004]).
The complaint alleges aiding and abetting breach of fiduciary duty with the requisite particularity (see CPLR 3016 [b]; Stewart Tit. Ins. Co. v Liberty Tit. Agency, LLC, 83 AD3d 532, 533 [1st Dept 2011]; National Westminster Bank v Weksel, 124 AD2d 144, 149 [1st Dept 1987]).
The causes of action for a constructive trust and an accounting must be dismissed as against the UK defendants since plaintiff concededly had no fiduciary relationship with them (see Krinos Foods, Inc. v Vintage Food Corp., 30 AD3d 332 [1st Dept 2006]; Bouley v Bouley, 19 AD3d 1049, 1051 [4th Dept 2005]). However, the complaint states causes of action for a constructive trust over any monies or other property that may be identified as having flowed from Khalil’s usurpation of business opportunities from plaintiff and for an accounting from Khalil (see Poling Transp. Corp. v A & P Tanker Corp., 84 AD2d 796, 797 [2d Dept 1981]; Bouley, 19 AD3d at 1051).
Plaintiffs counsels’ status as third-party defendants is not a sufficient basis for disqualifying them (see Aryeh v Aryeh, 14 AD3d 634, 634 [2d Dept 2005]).
As to the third-party complaint, an absolute privilege attaches to the statements made by plaintiffs counsel in the April 2011 letters, because they were issued in the context of “prospective litigation” (see Sexter & Warmflash, P.C. v Margrabe, 38 AD3d *484163, 174 [1st Dept 2007]; Vodopia v Ziff-Davis Publ. Co., 243 AD2d 368 [1st Dept 1997]). Even viewed in the liberal light required on a motion to dismiss pursuant to CPLR 3211, the third-party complaint and the documentary evidence fail, absent the libel claims, to allege the “malice” or use of “improper or illegal means” required to state a cause of action for tortious interference with business relations (see Amaranth LLC v J.P. Morgan Chase & Co., 71 AD3d 40, 47 [1st Dept 2009], lv dismissed in part, denied in part 14 NY3d 736 [2010]).
We have considered defendants’ remaining arguments for affirmative relief, including their contentions as to the cause of action for injunctive relief, and find them unavailing. Concur— Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. [Prior Case History: 2012 NY Slip Op 31404(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4151558/ | Case: 16-40149 Document: 00513904104 Page: 1 Date Filed: 03/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40149 FILED
Summary Calendar March 9, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL RIVERA-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-785-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Daniel Rivera-Hernandez pleaded guilty to illegal reentry of the United
States after removal. On appeal, he argues that the district court plainly erred
in entering judgment under 8 U.S.C. § 1326(b)(2). His contention is that his
prior Utah aggravated assault conviction, for which he was sentenced to 1 to
15 years of imprisonment, was not an aggravated felony. Rivera-Hernandez
does not brief a challenge to his 60-month sentence of imprisonment or to the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-40149 Document: 00513904104 Page: 2 Date Filed: 03/09/2017
No. 16-40149
manner in which his sentence was determined, and he has therefore waived
any challenge to such issues. See United States v. Thibodeaux, 211 F.3d 910,
912 (5th Cir. 2000).
For purposes of § 1326(b)(2), the term “aggravated felony” is defined in
8 U.S.C. § 1101(a)(43). See United States v. Mondragon-Santiago, 564 F.3d
357, 367 (5th Cir. 2009). An offense is an aggravated felony if it is “a crime of
violence (as defined in section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least one year.”
§ 1101(a)(43)(F) (internal footnote omitted).
In view of 18 U.S.C. § 16(b), we conclude that there was no error, plain
or otherwise, in the determination that Rivera-Hernandez’s prior Utah
aggravated assault conviction is a crime of violence as defined in § 16 and thus
an aggravated felony under § 1101(a)(43)(F). Rivera-Hernandez’s aggravated
assault conviction required the intent to cause serious bodily injury. See State
v. Hutchings, 285 P.3d 1183, 1187 (Utah 2012); State v. Velarde, 734 P.2d 449,
453 (Utah 1986). When considering whether an offense is a crime of violence
under § 16(b), we determine whether “in the ordinary case . . . the perpetrator
uses or risks the use of physical force in committing the offense.” Perez-Munoz
v. Keisler, 507 F.3d 357, 364 (5th Cir. 2007). “Being able to imagine unusual
ways the crime could be committed without the use of physical force does not
prevent it from qualifying as a crime of violence under § 16(b).” Id.
As Rivera-Hernandez concedes, his contention that the definition in
§ 16(b) is unconstitutionally vague in light of Johnson v. United States, 135
S. Ct. 2551, 2555-57 (2015), is foreclosed by our decision in United States
v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th Cir. 2016) (en banc), petition for
cert. filed (Sept. 29, 2016) (No. 16-6259). To the extent that Rivera-Hernandez
requests that we hold his appeal in abeyance pending an anticipated Supreme
2
Case: 16-40149 Document: 00513904104 Page: 3 Date Filed: 03/09/2017
No. 16-40149
Court decision addressing the constitutionality of § 16(b), see Lynch v. Dimaya,
137 S. Ct. 31 (2016), we decline to do so, as we remain bound by our own
precedent unless and until that precedent is altered by a decision of the
Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).
Because we have determined that, in view of § 16(b), there was no error,
plain or otherwise, in the entry of judgment under § 1326(b)(2), we need not
address Rivera-Hernandez’s contention that his Utah aggravated assault
conviction is not a crime of violence under § 16(a). Likewise, we need not
determine the standard of review applicable to that issue.
AFFIRMED.
3 | 01-03-2023 | 03-09-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/6823533/ | Paint spattering device. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903090/ | Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered March 26, 2012, which granted defendant Microsoft Corporation’s motion to dismiss the complaint as against it, unanimously affirmed, without costs.
The complaint fails to state a cause of action for negligent misrepresentation as against Microsoft. There is no indication that Microsoft knew that plaintiff was considering the purchase of Microsoft products and related services from defendant Albrecht, Viggiano, Zureck & Company, EC. doing business as AVZ Tech (AVZ), or even knew of plaintiffs existence, when it made the alleged misrepresentation about the qualifications of AVZ (see Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 373 [2010]). Plaintiff s allegation that it had relied on AVZ’s repetition of the same misrepresentation in AVZ’s proposal of a contract between AVZ and plaintiff does not establish privity, or a relationship approaching privity, between Microsoft and plaintiff at the time Microsoft made the alleged misrepresentation (see Westpac Banking Corp. v Deschamps, 66 NY2d 16, 19 [1985]). Likewise, plaintiff’s argument that it had become a customer of Microsoft subsequent to the alleged reliance on the misrepresentation does not establish that Microsoft made the misrepresentation to plaintiff as a known party (see McGill v General Motors Corp., 231 AD2d 449, 450 [1st Dept 1996]). Concur—Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903091/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Finnegan, J.), rendered March 6, 1984, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress identification testimony and a certain statement made by him to law enforcement authorities.
Ordered that the judgment is affirmed. .
The defendant was indicted for, and convicted of, the crime of murder in the second degree, based on the brutal and fatal knife slaying of one Sylvia Delgado. Viewing the evidence in a light most favorable to the prosecution, we find that it is legally sufficient to support the defendant’s conviction of the crimes charged (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). The sentence imposed upon defendant was appropriate under the circumstances (People v Suitte, 90 AD2d 80).
On the instant appeal, the defendant argues, inter alia, that Criminal Term erred in refusing to suppress the first statement made by him to the police and the identification testimony of the eyewitness to the crime. We disagree. The evidence adduced in the record clearly supports Criminal Term’s determination that the defendant’s first statement was not made in response to express questioning or its functional equivalent and that the pretrial identification procedures utilized by the police were properly conducted (People v Ferro, 63 NY2d 316, 319-323, cert denied 472 US 1007; People v Huffman, 61 NY2d 795; People v Prochilo, 41 NY2d 759, 761). Further, the court correctly ruled that the statement made by the gravely wounded victim to police within minutes of the attack upon her was admissible as a spontaneous declaration or excited utterance (see, People v Edwards, 47 NY2d 493; People v Vigilante, 122 AD2d 900, lv denied 68 NY2d 1005; People v Eastman, 114 AD2d 509, lv denied 67 NY2d 651; see also, People v Nieves, 67 NY2d 125, 135-137).
The defendant further argues that the trial court committed reversible error by (1) permitting him to proceed pro se at trial *409and (2) refusing to charge the affirmative defense of “extreme emotional disturbance” (Penal Law § 125.25 [1] [a]) as requested by the defendant. Neither of these arguments has any merit. The record indicates that (1) the defendant’s request to proceed pro se was unequivocal and timely asserted, (2) there was a knowing and intelligent waiver of the right to counsel, and (3) the defendant did not engage in conduct which would warrant the denial of his request to act as his own counsel (see, People v Smith, 68 NY2d 737; People v McIntyre, 36 NY2d 10, 17). The record further indicates that the defendant, who was assisted at the trial by a legal adviser (see, People v Sawyer, 57 NY2d 12, 22, rearg dismissed 57 NY2d 776, cert denied 459 US 1178), conducted his defense in an orderly fashion and with reasonable competency.
With respect to the trial court’s refusal to charge “extreme emotional disturbance”, the evidence presented was insufficient for a jury to find by a preponderance of the evidence that the elements of this affirmative defense were satisfied (People v Moye, 66 NY2d 887; People v Walker, 64 NY2d 741, rearg dismissed 65 NY2d 924).
Finally, the defendant’s remaining arguments, including those raised in his pro se supplemental brief, are either unpreserved for appellate review or without merit. Mangano, J. P., Bracken, Kunzeman and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903094/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), dated January 20, 1987, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
This appeal is from a judgment convicting the defendant of criminal possession of a weapon in the third degree under indictment No. 7043/84. At an earlier trial of charges arising from the same indictment, the jury acquitted the defendant of attempted murder in the second degree, assault in the second degree (felony assault), and reckless endangerment in the first degree, but was deadlocked and unable to reach a verdict on the second count of assault in the second degree (intentional assault), criminal possession of a weapon in the third degree, and criminal mischief in the fourth degree.
Initially we note that the defendant’s reprosecution was not *411barred by the doctrine of collateral estoppel. In a mixed verdict where the defendant is acquitted of some of the charges in a multicount indictment, the burden is upon the defendant to establish that an ultimate issue of fact has been finally adjudicated in his favor (Ashe v Swenson, 397 US 436; People v Goodman, 69 NY2d 32). As the record indicates that the jury could have rationally based its acquittal on the assault count upon a finding that the victim failed to sustain physical injury and not upon its conclusion that the defendant did not possess a weapon, we conclude that the issue of the defendant’s possession of a weapon was not fully and finally litigated and therefore the second prosecution was not barred by the doctrine of collateral estoppel (see, People v Martino, 112 AD2d 1049, lv denied 66 NY2d 616).
With respect to the defendant’s claim that the People failed to establish his possession of a sawed-off shotgun beyond a reasonable doubt, a review of the record in the light most favorable to the People reveals that the evidence was legally sufficient to sustain the defendant’s conviction (see, People v Ford, 66 NY2d 428; People v Contes, 60 NY2d 620). Finally, we note that the defendant was charged with a violation of Penal Law § 265.02 (1), not Penal Law § 265.02 (4), so the People did not have to prove that the firearm was loaded. Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5907436/ | Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from judgment of Cattaraugus County Court, Crowley, J. — attempted robbery, first degree.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823534/ | Gate circuit with low-ohmic load. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903096/ | Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered March 26, 2012, which granted defendant Microsoft Corporation’s motion to dismiss the complaint as against it, unanimously affirmed, without costs.
The complaint fails to state a cause of action for negligent misrepresentation as against Microsoft. There is no indication that Microsoft knew that plaintiff was considering the purchase of Microsoft products and related services from defendant Albrecht, Viggiano, Zureck & Company, EC. doing business as AVZ Tech (AVZ), or even knew of plaintiffs existence, when it made the alleged misrepresentation about the qualifications of AVZ (see Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 373 [2010]). Plaintiff s allegation that it had relied on AVZ’s repetition of the same misrepresentation in AVZ’s proposal of a contract between AVZ and plaintiff does not establish privity, or a relationship approaching privity, between Microsoft and plaintiff at the time Microsoft made the alleged misrepresentation (see Westpac Banking Corp. v Deschamps, 66 NY2d 16, 19 [1985]). Likewise, plaintiff’s argument that it had become a customer of Microsoft subsequent to the alleged reliance on the misrepresentation does not establish that Microsoft made the misrepresentation to plaintiff as a known party (see McGill v General Motors Corp., 231 AD2d 449, 450 [1st Dept 1996]). Concur—Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903097/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered March 10, 1986, convicting him of assault in the third degree, criminal possession of a weapon in the third degree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered; no questions of fact have been raised or considered.
We agree with the defendant’s contention that his right to a public trial was violated when the trial court, over defense counsel’s objections, ordered that certain spectators be excluded from the courtroom while the complaining witness was questioned with respect to a particular sexual act allegedly practiced by this witness and the defendant. The prosecutor had argued that this testimony would prove "extremely embarrassing” to this witness were she compelled to testify before the defendant’s friends and family members, who were present in the courtroom.
*413While a trial court is vested with the discretionary power to direct the closure of a courtroom upon a showing of an overriding interest that is likely to be prejudiced if the courtroom remains open (see, People v Guevara, 135 AD2d 566), a closure cannot be tolerated unless “preceded by an inquiry careful enough to assure the court that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons” (see, People v Jones, 47 NY2d 409, 414-415, cert denied 444 US 946).
The trial court, in the instant case, failed to conduct such an inquiry nor did it articulate an overriding interest or specific findings sufficient to warrant closing the courtroom. (See, People v Thomas, 130 AD2d 692; People v Baldwin, 130 AD2d 666.) Instead, the court relied exclusively upon the prosecutor’s speculative conclusion that the testimony sought to be elicited might be embarrassing to the complainant. This representation was, however, insufficient to justify the closure of the courtroom to specific spectators and did not constitute a “showing of compelling necessity” (see, People v Warren O., 86 AD2d 895). Thus, reversal of the conviction is required and a new trial is hereby ordered.
In view of our disposition herein, the defendant’s remaining contentions need not be addressed. Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903098/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Edward McLaughlin, J.), rendered on or about April 26, 2011, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534820/ | 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
VARUZHAN BABKENY TATULYAN; No. 16-70028
BABKEN VARUZHANY TATULYAN,
Agency Nos. A099-709-524, A099-
Petitioners, 709-525
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2020**
Pasadena, California
Before: WARDLAW, COOK,*** and OWENS, Circuit Judges.
*
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 Deborah L. Cook, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
-1-
Varuzhan Tatulyan and his son, natives and citizens of Armenia, petition for
review of the denial of their asylum claims. Because substantial evidence supports
the Immigration Judge’s adverse credibility determination, we deny the petition.
I.
Before the IJ, Tatulyan testified that he discovered his employer exporting
raw copper in violation of Armenian law and reported the lawbreaking to a local
prosecutor. He testified that due to his report the Armenian police raided his home
and unlawfully detained and beat him. Then, he explained, he and his wife received
threatening phone calls, and plainclothes officers attacked him near his home.
Tatulyan and his son fled Armenia for the United States and applied for asylum,
withholding of removal, and relief under the Convention Against Torture.
Relying on over 300 pages of testimony from Tatulyan and a supporting
witness, the IJ denied the claims.1 The BIA dismissed Tatulyan’s appeal, and he
petitions for review.
II.
We review the IJ’s decision “under the highly deferential ‘substantial
evidence’ standard.” Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010) (citation
omitted).
1
As the BIA explained, Tatulyan’s asylum application “applies to his son[,]”
who was a minor at the time of the application; their claims rise or fall together.
-2-
A. Asylum
“An asylum applicant bears the burden of establishing his claim through
credible evidence.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). In
assessing an applicant’s credibility, an IJ must consider “the totality of the
circumstances[.]” Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010) (citation
and internal quotation mark omitted). We uphold an IJ’s credibility determination
“unless the evidence compels a contrary result.” Almaghzar v. Gonzales, 457 F.3d
915, 920 (9th Cir. 2006) (citation omitted).
Substantial evidence supports the IJ’s adverse credibility finding. The IJ
found Tatulyan’s testimony not credible due to “numerous material inconsistencies
and omissions.” As the IJ observed, Tatulyan testified inconsistently on whether
Armenia criminalizes raw metal exports. For example, he initially stated that
Armenia bans all such exports before testifying that companies may export with
permission, and he could not identify which government agency grants such
authorization. Tatulyan argued during his IJ hearing that the interpreter erroneously
translated his testimony on this point. But because the DOJ’s language services unit
evaluated and approved the translation, and because Tatulyan has not explained how
specifically the translator erred, the IJ reasonably relied on it in denying the claims.
Tatulyan’s testimony included further inconsistencies regarding his arrest and
detention. He provided widely varying estimates of the duration of his police
-3-
beating—initially stating that it continued for twenty-five minutes, later testifying to
it lasting only one minute. And he contradicted himself regarding the object used to
strike him.
The IJ also found that Tatulyan testified implausibly when he claimed that he
refused to seek treatment at a hospital for fear that someone would alert the police.
Despite this purported fear, he asked a police officer for help after his wife received
threatening phone calls. The IJ reasonably “f[ound] it questionable that [Tatulyan]
would go to the same entity that was allegedly persecuting him.”
Tatulyan also contradicted the female witness he had testify in support of his
application. The IJ found this witness credible in undermining Tatulyan’s story. For
example, regarding the attack near his home Tatulyan said that the witness knew of
the incident because the witness recounted it to Tatulyan’s wife. But the witness
testified that she “didn’t tell [Tatulyan’s wife] anything[.]” Though Tatulyan’s brief
offers “plausible” explanations for his various inconsistencies, they fail to “compel[]
the interpretation[s]” he advocates. Lianhua Jiang v. Holder, 754 F.3d 733, 740 (9th
Cir. 2014).
In denying his claim the IJ also relied on Tatulyan’s “fail[ure] to provide
important corroborating evidence or to articulate reasonable explanations for” the
absence of such evidence. He applied for asylum in 2006 and began testifying in
2011, affording him ample time to support his claims with documents and testimony.
-4-
See 8 U.S.C. § 1158(b)(1)(B)(ii). As the IJ found, however, Tatulyan failed to
corroborate key allegations that Armenia banned raw metal exports; that he reported
lawbreaking to the prosecutor; that police arrested and beat him; that undercover
police officers attacked him outside his home; and that he suffered severe injuries.
“[D]enuded of” these allegations, Tatulyan’s story collapses. See Shrestha, 590 F.3d
at 1049. Though Tatulyan attempted to explain to the IJ the absence of corroborating
evidence, the record did not compel her to accept his explanations. Aden v. Holder,
589 F.3d 1040, 1046 (9th Cir. 2009).
B. Withholding of Removal
Because Tatulyan has not shown that his evidence satisfies the “lesser
standard of proof” for asylum, he fails to carry the “more stringent” burden of
demonstrating entitlement for withholding of removal. Ghaly v. I.N.S., 58 F.3d
1425, 1429 (9th Cir. 1995).
C. Protection under the Convention Against Torture
“To receive CAT protection, a petitioner must prove that it is ‘more likely
than not’ that he or she would be tortured if removed.” Shrestha, 590 F.3d at 1048
(quoting 8 C.F.R. § 1208.16(c)(2)). Here Tatulyan’s “lack of credible testimony”
and failure “to provide credible evidence to demonstrate that he was subjected to
persecution or torture in Armenia” led the IJ to find this burden unmet. Given
-5-
Tatulyan’s failure to corroborate several key allegations, substantial evidence
supports the IJ’s conclusion. See id. at 1049.
III.
We DENY the petition.
-6- | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5903100/ | Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Naro, J.), imposed September 16, 1986, the sentence being a term of imprisonment of 3ti to 7 years, upon his plea of guilty to the crime of attempted burglary in the second degree.
Ordered that the sentence is affirmed.
The mere fact that defendant suffers from acquired immune deficiency syndrome is not, in and of itself, a ground for reducing the otherwise appropriate and bargained-for sentence which was imposed (see, People v Parker, 132 AD2d 629, lv granted 70 NY2d 715; People v Suitte, 90 AD2d 80; People v Kazepis, 101 AD2d 816). Any application by the defendant to ameliorate the conditions under which he is incarcerated should be made to the New York State Department of Correctional Services. Mollen, P. J., Mangano, Thompson and Bracken, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903101/ | Appeal by the defendant from a judgment of the County Court, Nassau County (Boklan, J.), rendered November 13, 1984, convicting him of criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Fertig, J.) after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by him to the police.
Ordered that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress statements made by him to the police is granted, and a new trial is ordered.
*415We find that the People failed to satisfy their burden of establishing the reliability of the challenged radio transmissions offered as predicates for a finding of reasonable suspicion to stop and probable cause to arrest the defendant (see, People v Lypka, 36 NY2d 210). Consequently, the defendant’s motion to suppress the statements he made to the police following his arrest should have been granted.
The computer printouts offered by the People, which were undisputedly generated by an unidentified officer sometime after the defendant’s arrest, have no bearing upon the earlier radio bulletins allegedly relayed to the arresting officers. Notwithstanding the fact that the defendant unambiguously challenged the validity of the computer printouts, the People offered nothing beyond these irrelevant printouts to prove the reliability of the two radio transmissions which allegedly reported that both the car the defendant was driving and the license plates it carried were stolen. These printouts could not replace the testimony of the sending officer who relayed the information to the arresting officers, nor did they establish the content or basis of the information received by the arresting officers (see, People v Havelka, 45 NY2d 636).
Where, as here, the People were given a full and fair opportunity to present their evidence of probable cause at the suppression hearing but failed to meet their burden, and there is no claim that the sending officer was unavailable to testify, the People are not entitled to a rehearing (see, People v Payton, 51 NY2d 169, 177; People v Havelka, supra, at 644; People v Green, 87 AD2d 892, 893).
We find no merit to the other contentions raised by the defendant. Kunzeman, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903102/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered March 22, 1984, convicting him of attempted murder in the second degree (two counts), assault in the first degree, robbery in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing consecutive terms of 12 Vi to 25 years’ imprisonment for each count of attempted murder, concurrent prison terms of 5 to 15 years’ imprisonment for the assault count, 12 Vi to 25 years’ imprisonment for each robbery count and 2 Vi to 7 years for the criminal possession of a weapon count.
Ordered that the judgment is modified, on the law, by *416reducing the minimum term of each of the sentences imposed upon the defendant’s conviction of two counts of attempted murder in the second degree from 12 Vi years to 8 Vs years; as so modified, the judgment is affirmed.
The defendant’s claim that he was denied effective assistance of counsel is without merit. All but one of his alleged errors were trial tactics by defense counsel which should not be questioned on hindsight (see, People v Baldi, 54 NY2d 137). From the one instance where the defense counsel did not understand the necessity and procedure for laying a foundation for the admission of prior inconsistent statements, it cannot be said that the defendant was denied effective assistance of counsel. Rather, the evidence, the law and the circumstances of the case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation and that the constitutional requirement was met (see, People v Baldi, supra; People v Droz, 39 NY2d 457). It is clear that the defense counsel had taken the time to review and prepare the law and the facts relevant to the defense, and was familiar with and able to employ at trial the basic principles of criminal law and procedure (see, People v Droz, supra).
However, it was clearly improper for the sentencing court to have imposed a minimum term that was one half the maximum for the defendant’s convictions of attempted murder in the second degree because such a crime is not an armed felony offense by definition and the defendant was a first felony offender (Penal Law § 70.02 [4]; §§ 110.00, 125.25; CPL 1.20 [41]; see, People v Frawley, 117 AD2d 613, lv denied 67 NY2d 883). On the other hand, since the defendant’s convictions of robbery in the first degree (two counts) were convictions for class B armed violent felony offenses, the imposition of a minimum which was one half the maximum was in accordance with the law (Penal Law § 70.02 [4]; § 160.15 [4]; CPL 1.20 [41]).
Finally, the sentencing court properly determined that the sentences for attempted murder in the second degree (two counts) should run consecutively since those two counts arose out of separate acts against different people (see, People v Brathwaite, 63 NY2d 839). Thompson, J. P., Bracken, Rubin and Fiber, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534855/ | Filed 5/15/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B298642
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA042241)
v.
DAVID SHAWN SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert Perry, Judge. Reversed and
remanded, with instructions.
Emry J. Allen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Acting Senior Assistant Attorney General, David E. Madeo,
Deputy Attorney General, Idan Ivri, Acting Supervising
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
Defendant and appellant David Shawn Smith appeals
from a postjudgment order denying his petition for
resentencing pursuant to Penal Code section 1170.951 and
Senate Bill No. 1437 (Senate Bill 1437). As relevant here,
the statute and Senate bill provide for vacatur of a
defendant’s murder conviction and resentencing if the
defendant was convicted of felony murder and the defendant
(1) was not the actual killer, (2) did not act with the intent to
kill, and (3) was not a major participant who acted with
reckless indifference to human life. (§ 189, subd. (e)(3).)
Smith contends the trial court erred by summarily
denying his petition on the merits and on the basis that
Senate Bill 1437 unconstitutionally amends section 190, and
by failing to appoint counsel prior to determining his
eligibility for resentencing.2
The People agree that section 1170.95 and Senate Bill
1437 do not unconstitutionally amend section 190, but argue
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Smith also contends that the trial court was required
to issue an order to show cause and conduct a hearing on the
matter. The court has no duty to do so prior to appointment
of counsel and briefing, and Smith does not argue otherwise.
As we are remanding for appointment of counsel and
briefing, the issue is premature and we decline to address it
here.
2
that the trial court’s ruling should be affirmed because in
1994 the jury found true the special circumstance that the
murder was committed during the commission of a robbery
(§ 190.2, subd. (a)(17)), a finding which we affirmed on direct
appeal in 1996.
We reverse and remand to the trial court. We agree
with the parties that section 1170.95 and Senate Bill 1437
do not unconstitutionally amend section 190. We further
conclude that Smith should have been appointed counsel
before the trial court ruled on his petition.
FACTS AND PROCEDURAL HISTORY
Murder Conviction
In 1994, Smith was convicted of first degree murder
(§ 187, subd. (a) [count 1]) under a felony murder theory of
liability. The jury found true the special circumstance that
the murder was committed during the commission of a
robbery pursuant to section 190.2, subdivision (a)(17). Smith
was additionally convicted of two counts of kidnapping
(§ 209; [counts 2 & 3]), two counts of burglary (§ 459; [counts
4 & 5]), one count of residential robbery (§ 211; [count 7]),
and three counts of rape (§§ 261, subd. (a)(2), 264.1, 289;
[counts 8–10]). He was sentenced to life in state prison
without the possibility of parole, plus sixteen years.3
3Smith’s offenses, carried out with his co-defendants
Anthony D. Jefferson and Reginald Ray York, as recited in
3
Appeal
Smith appealed, contending, as pertinent here, that
there was insufficient evidence that he acted with “reckless
indifference to human life,” as required to support the jury’s
robbery murder special circumstance finding, and that the
trial court gave an erroneous instruction regarding “reckless
indifference.” (York, supra, B088372, at pp. 12–13.) This
court concluded that the jury’s robbery-murder special
circumstance finding was supported because substantial
evidence was presented to demonstrate that Smith acted
with “reckless indifference to human life,” i.e. that he had “a
subjective appreciation or knowledge . . . [that his] acts
involved a grave risk that such acts could result in the death
of an innocent human being.” (Id. at p. 12.) We also held
that there was no error in the instruction given to the jury
regarding reckless indifference (CALJIC No. 8.80.1). (Id. at
p. 13.)
Section 1170.95 Petition for Resentencing
Petition for Resentencing
On January 25, 2019, Smith petitioned for
resentencing under section 1170.95. He declared that he
our unpublished opinion, People v. York et al. (Jan. 16, 1996,
B088372) (York), are described in the trial court’s ruling,
post.
4
met all of the requirements for section 1170.95 and was
eligible for relief. Smith further declared that he was not a
“major participant” in the murder and did not act with
“reckless indifference.” Smith requested that counsel be
appointed to him.
Trial Court’s Ruling
The trial court denied the petition on February 19,
2019. The trial court’s written ruling discussed the reasons
for denial as follows:
“On April 25, 1991, Otis Ervin robbed an armored car
of $500,000. Six weeks later, Defendant David Shawn Smith
joined with two other men to rob Ervin of his ill-gotten gains.
The intended robbery spiraled into a major crime spree
which included rape in concert, rape by a foreign object in
concert, burglaries, residential robberies, kidnappings and
murder.
“Defendant Smith was convicted by jury and was
sentenced to life without parole plus 16 years. His
conviction was affirmed by the Court of Appeal in 1996 in an
unpublished opinion. (People v. Reginald Ray York, et al.,
(January 16, 1996), ___ Cal.App.3d ___ (York) [nonpub.
opn.])
“The Court of Appeal opinion described the crimes
committed by Petitioner and his co-conspirators.
“In this case, substantial evidence of reckless
indifference to human life exists. York and Jefferson
5
kidnapped the Howard sisters at gunpoint from the parking
lot where they worked. They handcuffed the two sisters and
threatened repeatedly to kill them. They informed the
sisters that they knew where they and their family lived and
had been observing the family. They were joined by Smith
and drove the sisters around for hours. They burglarized
Reginald Ervin’s apartment.
“At the Perry residence, they held the entire Perry
household, including four small children, at gunpoint, while
they ransacked the house. They kicked, slapped, and beat
Reginald Ervin. They threatened to torture and kill the
family. They raped Yolanda, while continuing to hold her
family at gunpoint.
“It is apparent defendants knew that their acts
involved a grave risk of the death of an innocent human
being. They held two young women at gunpoint and in
handcuffs for hours, they held a family, including young
children, at gunpoint while they ransacked the residence
and raped a sister. They threatened to torture and kill the
young women and the family. When Reginald Ervin
attempted to break free to get a gun to protect his family,
defendants shot and killed him.’ (People v. Reginald Ray
York, el al., Id., pp. 12, 13.)
“In his petition, Smith claims he was not the actual
killer and he did not act with the intent to kill. He also
claims he was not a major participant in the felony and did
not act with reckless indifference to human life in this
matter. The Court of Appeal found otherwise.
6
“The jury was instructed that in order to find the
felony-murder special circumstance to be true, it must find
that defendants were major participants in the underlying
felonies and acted with reckless indifference to human life.
(CALJIC No. 8.80.1.) ‘Reckless indifference to human life’
refers to a mental state which includes subjective
appreciation or knowledge by a defendant that the
defendant’s acts involved a grave risk that such acts could
result in the death of an innocent human being.
(People v. Reginald Ray York, et al., Id.)
“The Court also observed that ‘substantial evidence of
reckless indifference to human life’ existed for each of the
defendants and it was ‘apparent defendants knew that their
acts involved a grave risk of the death of a human being.’
(Id.)
“Smith was a major participant in the events and acted
with obvious reckless indifference to human life during the
course of the many major crimes, including murder,
committed in this case. He is not eligible for sentencing
relief pursuant to Penal Code § 1170.95. See Penal Code
§§ 189(e)(1) and 1170.95(a)(3).
“As a second and independent ground for denying
Smith’s petition for resentencing, the court finds SB 1437
and Penal Code § 1170.95 violate the California Constitution
because the Legislature unconstitutionally amended Penal
Code § 190 which was passed by referendum in 1978 by
Proposition 7 and may not be amended or repealed unless by
vote of the People.
7
“The petition for resentencing is denied.”
DISCUSSION
On appeal, Smith argues that section 1170.95 and
Senate Bill 1437 do not unconstitutionally amend section
190, and that he was entitled to appointment of counsel prior
to the trial court making any determination as to whether a
prima facie case for relief exists. He further contends that
the jury’s 1994 robbery murder special circumstance finding
does not bar him from relief, as the People argue.
The People concede, and we agree, that section 1170.95
does not unconstitutionally amend section 190. Although we
disagree with Smith’s characterization of the petitioning
process, and specifically, the point at which entitlement to
counsel attaches, we conclude that Smith, in the words of
section 1170.95, subdivision (c), “made a prima facie showing
that [he] falls within the provisions of th[at] section,” and
was therefore entitled to appointment of counsel and an
opportunity for briefing.4
4 Contrary to Smith’s position that appointment of
counsel requires no prima facie showing whatsoever, we
have previously held that a petitioner is entitled to counsel
only after he has made a prima facie showing that he falls
within the statute’s provisions. (People v. Torres (2020) 46
Cal.App.5th 1168, 1178 (Torres)) However, because Smith
has made a prima facie showing that he falls within section
1170.95’s provisions, he is nonetheless entitled to
appointment of counsel.
8
Constitutionality
The trial court denied Smith’s petition because Senate
Bill 1437 unconstitutionally amended section 190, which was
passed by referendum in 1978 through Proposition 7, and
cannot be amended or repealed except by the people’s vote.
The People concede, and we agree, that this was error.
Three of our sister courts have held that Senate Bill 1437
does not directly modify or amend the statutory changes
effected by Proposition 7 or amend the voter’s intent in
passing Proposition 7. (People v. Bucio (Apr. 27, 2020,
B299688) ___ Cal.App.5th ___ [2020 WL 1983347, p. 2];
People v. Solis (2020) 46 Cal.App.5th 762, 774–780; People v.
Cruz (2020) 46 Cal.App.5th 740,753–759; People v. Superior
Court (Gooden) (2019) 42 Cal.App.5th 270, 280–284; People
v. Lamoureux (2019) 42 Cal.App.5th 241, 250–251.) We
agree with the results reached in these cases, and as the
parties are also in agreement that Senate Bill 1437 does not
unconstitutionally amend section 190, we do not address the
issue further here.
Merits and Appointment of Counsel
Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under a felony murder theory of liability could
petition to have his conviction vacated and be resentenced.
Section 1170.95 initially requires a court to determine
9
whether a petitioner has made a prima facie showing that he
or she falls within the provisions of the statute as set forth in
subdivision (a), including that “(1) [a] complaint,
information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine[,] [¶] (2) [t]he petitioner was convicted
of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder[,
and] [¶] (3) [t]he petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.” (See § 1170.95, subd.
(c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review
granted Mar. 18, 2020, S260493 (Verdugo).) If it is clear
from the record of conviction that the petitioner cannot
establish eligibility as a matter of law, the trial court may
deny the petition.5 (Id. at p. 330.) If, however, a
determination of eligibility requires an assessment of the
5 For example, if the jury was not instructed on a
natural and probable consequences or felony murder theory
of liability, the petitioner could not demonstrate eligibility as
a matter of law because relief is restricted to persons
convicted under one of those two theories. (See People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138–1139, review
granted Mar. 18, 2020, S260598 (Lewis) [appellate court
opinion holding that jury convicted defendant of murder as a
direct aider and abettor barred defendant from relief as a
matter of law].)
10
evidence concerning the commission of the petitioner’s
offense, the trial court must appoint counsel and permit the
filing of the submissions contemplated by section 1170.95.
(Id. at p. 332; Lewis, supra, 43 Cal.App.5th at p. 1140.)
Analysis
In this case, the issue is whether there is anything in
the record of conviction that would permit the trial court to
determine that Smith does not fall within section 1170.95’s
provisions, such that it could deny his petition without
appointing counsel. More specifically, the question is
whether the trial court properly concluded as a matter of law
that the record on appeal precludes Smith from showing that
he was not a major participant in the robbery and did not act
with reckless indifference to human life. We conclude the
record provides no basis for such a determination.
The Jury’s Special Circumstance Finding Does
Not Preclude Eligibility
The People urge us to affirm the trial court’s denial of
Smith’s petition on the basis of the jury’s 1994 robbery
murder special circumstance finding (§ 190.2, subd. (a)(17)),
which we affirmed in 1996.
The jury’s true finding was predicated on its
determination that Smith was both a “major participant” in
the robbery and acted with “reckless indifference to human
11
life.” Under section 1170.95, the petitioner must make a
prima facie showing that he “could not be convicted of first or
second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.” (§ 1170.95, subd.
(a)(3).) The language of section 189, subdivision (e)(3), as
amended by Senate Bill 1437, tracks the language of the
special circumstance provision. Section 189, subdivision (e)
now provides that “[a] participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a)
[(in this case, robbery)] in which a death occurs is liable for
murder only if one of the following is proven: [¶] . . . [¶] (3)
The person was a major participant in the underlying felony
and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”
The People’s argument has facial appeal: the plain
language of the requirements underlying the jury’s robbery
murder special circumstance finding in Smith’s case (i.e.
“major participant” and “reckless indifference to human life”)
is identical to the language setting forth the requirements
for murder liability under amended section 189. A difficulty
arises, however, because the jury’s special circumstance
finding was made prior to issuance of our Supreme Court’s
opinions in People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark), which
construed the meanings of “major participant” and “reckless
indifference to human life” “in a significantly different, and
narrower manner than courts had previously.” (Torres,
supra, 46 Cal.App.5th at p. 1179.) As a consequence, the
12
factual issues that the jury was asked to resolve in 1994 are
not the same factual issues our Supreme Court has since
identified as controlling. It would be inappropriate to
“treat[] [the 1994] findings as if they resolved key disputed
facts” when the jury did not have the same questions before
them. (Id. at p. 1180.) As we recently held, courts may not
“defer to the jury’s pre-Banks and Clark factual findings that
[the petitioner] was a major participant who acted with
reckless indifference to human life as those terms were
interpreted at the time” when determining the petitioner’s
eligibility for resentencing as a matter of law, in light of the
considerations identified in those two opinions. (Id. at
p. 1179.)
The People acknowledge that our understanding of
“major participant” and “reckless indifference to human life”
have evolved with the issuance of Banks and Clark, but
argue that, in the absence of a successful challenge to the
special circumstance findings, the trial court “was obligated
to assume the conviction was lawful and comported with the
post-Banks guidelines.” We disagree, as the People’s
contention is inconsistent with the language and operation of
section 1170.95. Section 1170.95 provides that “[a] person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the
court that sentenced the petitioner to have the petitioner’s
murder conviction vacated . . . .” (§ 1170.95, subd. (a).) The
statute only specifically references special circumstance
findings in subdivision (d)(2), which states, “If there was a
13
prior finding by a court or jury that the petitioner did not act
with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” There
is no corresponding provision indicating that a jury’s prior
special circumstance true finding, or a court of appeal’s
affirmation thereof, operates as an automatic statutory bar
to eligibility. The absence of such a provision makes sense.
Determining whether a petitioner was a “major participant”
who acted with “reckless indifference” as those terms are
currently used in section 189 may require more than
deference to a jury’s special circumstance true finding—
indeed, in cases like Smith’s, where the finding was made
before Banks and Clark were issued and not affirmed
subsequent to those cases, it requires an analysis of the facts
involved.6
Moreover, the potential remedies outlined in section
1170.95 indicate that the Legislature anticipated some
special circumstance findings would not preclude eligibility
as a matter of law, and that those findings would be
inconsistent with vacatur of the corresponding murder
conviction. Section 1170.95, subdivision (d)(3) provides, “If
the prosecution fails to sustain its burden of proof, the prior
6 We do not address whether a jury’s post-Banks and
Clark special circumstance true finding or a court’s
affirmance of a special circumstance finding following Banks
and Clark may be dispositive as a matter of law, as neither
question is before us in the present case.
14
conviction, and any allegations and enhancements attached
to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Italics added.) The
statute is clearly designed to resolve the question of whether
a murder conviction—not a special circumstance—is
sufficiently supported. If the conviction cannot stand, the
special circumstance will necessarily be vacated as well.
In this case, the jury’s special circumstance finding was
affirmed in 1996, approximately two decades before Banks
and Clark were decided. No court has affirmed the special
circumstance finding post-Banks and Clark. We cannot
affirm the trial court’s ruling on this ground, as the People
urge.
The Trial Court Erred in Summarily Denying the
Petition Based on Its Evaluation of Facts Recited
in the Record of Conviction
Here, without appointing counsel to Smith or
permitting counsel to make a filing, the trial court reviewed
our 1996 appellate opinion and considered the facts as
described in our discussion of the sufficiency of the evidence
supporting the special circumstance. The trial court made a
determination that those facts were sufficient to establish
that Smith was a major participant in the underlying felony
and acted with reckless indifference to human life. But that
factual record is not the only consideration that the trial
court must take into account for purposes of section 1170.95.
15
Where the record of conviction does not preclude a petitioner
from making a prima facie showing that he falls within the
statute’s provisions as a matter of law, the petitioner is not
confined to presenting evidence contained in the record of
conviction in seeking relief. Section 1170.95 provides “the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet [his] burden[].”7 (§ 1170, subd.
(d)(3).) It is conceivable that Smith may be able to provide
evidence not presented at trial that would demonstrate
either that he was not a major participant in the robbery or
did not act with reckless indifference to human life. By
ruling prior to the appointment of counsel, the trial court
deprived Smith of the opportunity to develop, with the aid of
counsel, a factual record beyond the record of conviction.
Only after giving a petitioner the opportunity to file a reply,
in which he may develop a factual record beyond the record
of conviction, is a trial court in a position to evaluate
whether there has been a prima facie showing of entitlement
to relief.
We therefore cannot conduct our own assessment of the
trial evidence to determine whether Smith was a major
participant and acted with reckless indifference to human
life, or to use that record evidence to inquire whether the
deprivation of counsel was harmless error, as our colleagues
in Division Two of the Fourth District did in People v. Terrell
7 The prosecution is also permitted to rely on evidence
outside the record of conviction to meet its burden. (§ 1170,
subd. (d)(3).)
16
Law (Apr. 27, 2020, E072845) ___ Cal.App.5th ___ [2020 WL
2125716] (Law). The procedural posture in Law was similar
to the instant case. The trial court denied Law’s section
1170.95 petition prior to appointment of counsel on the basis
of a robbery-murder special circumstance true finding made
before our Supreme Court had issued its decisions in Banks
and Clark. (Law, supra, ___ Cal.App.5th ___ [2020 WL
2125716, p. 1].) On appeal from the denial of Law’s section
1170.95 petition, the appellate court held that the existence
of a pre-Banks and Clark special circumstances finding alone
did not preclude relief (a holding consistent with our ruling
here). Rather than remand the case to the trial court for
appointment of counsel, however, the Law court undertook
its own analysis of the existing record facts to affirm the
lower court’s summary dismissal of the petition. With
respect to appointment of counsel, the court held that,
regardless of whether Law was entitled to counsel, any error
was harmless, because counsel could not have obtained a
more favorable result, “[g]iven the trial evidence.” (Law,
supra, ___ Cal.App.5th ___ [2020 WL 2125716, pp. 5, 7].)
We respectfully disagree with this reasoning. In
enacting Senate Bill 1437, the Legislature provided that a
petitioner may meet his or her burden by offering new or
additional evidence. Therefore, we cannot say at this stage
of the proceedings that failure to appoint counsel was
harmless “given the trial evidence”; by the express terms of
section 1170.95, subdivision (d)(3), counsel is not limited to
the trial evidence.
17
Because neither of the trial court’s reasons for denying
Smith’s petition is valid, and it does not appear that he is
otherwise ineligible for relief as a matter of law as the
People argue, we reverse and remand the matter to the trial
court to appoint counsel and consider briefing.
DISPOSITION
The trial court’s order denying Smith’s resentencing
petition is reversed and the matter remanded for the trial
court to appoint counsel and conduct further proceedings in
accordance with the terms of section 1170.95.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
18 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5903104/ | An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Edward McLaughlin, J.), rendered on or about April 26, 2011, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur— Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903105/ | Appeal by the defendant from a judgment of the County Court, Suffolk County (Seidell, J.), rendered September 8, 1986, convicting him of robbery in the first degree and burglary in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The primary evidence in this case consisted of the identification of the defendant’s voice by both victims, each of whom knew the defendant. Viewing the evidence in the light most favorable to the People, we conclude that the defendant’s guilt was proven beyond a reasonable doubt (see, People v Morgan, 66 NY2d 255).
We also reject the defendant’s claim that he was not afforded effective assistance of counsel at trial (see, People v Baldi, 54 NY2d 137).
The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).
We have considered the defendant’s remaining contentions and find that they are either unpreserved for appellate review or without merit. Bracken, J. P., Weinstein, Rubin and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903106/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered June 5, 1986, convicting him of murder in the second degree, upon a jury vei’dict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that a detective’s testimony that he arrested the defendant based on his interviews with the People’s key witnesses improperly bolstered the testimony of those witnesses (see, People v Trowbridge, 305 NY 471; People v Holt, 67 NY2d 819). However, no objection to the detective’s testimony was made. Therefore, the issue is not preserved for appellate review (see, People v Nuccie, 57 NY2d 818; CPL 470.05 [2]). In any event, the claim is without merit. Nowhere in the detective’s testimony is there a statement that any of the witnesses identified the defendant as the killer. Furthermore, in light of the overwhelming evidence of the defendant’s guilt, any error was harmless (see, People v Crimmins, 36 NY2d 230; People v Johnson, 57 NY2d 969).
The defendant also argues that the prosecutor’s reference in his summation, which was made the day after Mother’s Day, to the loss suffered by the victim’s children was an improper appeal to the jurors’ emotions. While we agree that the prosecutor’s remark departed from acceptable professional conduct (see, People v Rodriguez, 135 AD2d 586; People v Baldo, 107 AD2d 751), it did not deny the defendant a fair trial in light of the overwhelming evidence of his guilt (see, People v Barry, 125 AD2d 581, lv denied 69 NY2d 947). In any event, the court promptly admonished the jury not to let their sympathies enter into their deliberations.
Finally, we find no basis in the record to support the defendant’s contentions that the trial court abused its discretion by imposing the maximum sentence or that this court should reduce the sentence in the interests of justice (see, People v Farrar, 52 NY2d 302; People v Suitte, 90 AD2d 80).
We have examined the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1362739/ | 686 F.Supp.2d 147 (2010)
UNITED STATES of America
v.
Darwin JONES, Defendant.
CR. No. 07-10289-MLW.
United States District Court, D. Massachusetts.
February 19, 2010.
Order Supplementing Decision May 7, 2010.
*148 Joseph F. Savage, Jr., Goodwin Procter, LLP, Boston, MA, for Interested Party, Suzanne Sullivan.
John A. Wortmann, Jr., Suzanne M. Sullivan, Dina M. Chaitowitz, James D. Herbert, Michael K. Loucks, United States Attorney's Office, Boston, MA, for Plaintiff, USA.
MEMORANDUM AND ORDER
WOLF, District Judge.
I. SUMMARY
In January, 2009, the court ordered Assistant United States Attorney Suzanne Sullivan and the United States Attorney to seek to show cause why sanctions should not be imposed on Ms. Sullivan and the government for her egregious error in failing to produce plainly important exculpatory information to defendant Darwin Jones. See United States v. Jones, 609 F.Supp.2d 113 (D.Mass.2009); United States v. Jones, 609 F.Supp.2d 132 (D.Mass.2009); United States v. Jones, 620 F.Supp.2d 163 (D.Mass.2009). This error extended "`a dismal history of intentional and inadvertent violations of the government's duties to disclose in cases assigned to this court.'" Jones, 620 F.Supp.2d at 165 (quoting Jones, 609 F.Supp.2d at 119). Customary means of addressing errors and intentional misconduct had proved inadequate to prevent the repetition of violations of constitutional duties, the requirements of the Federal Rules, Local Rules, and court orders concerning discovery. See id. at 175-77 ("Neither referral to [the Department of Justice, Office of Professional Responsibility], other disciplinary bodies, or public criticism has sufficiently deterred prosecutorial misconduct."). Therefore, the court gave notice that it was considering ordering Ms. Sullivan to personally reimburse the District Court for at least some of the cost of the time spent by the indigent defendant's court-appointed counsel in dealing with the issues raised by her errors. See Jones, 609 F.Supp.2d at 134; Jones, 620 F.Supp.2d at 166, 180; see also United States v. Horn, 29 F.3d 754, 758-59, 766 (1st Cir.1994).
Ms. Sullivan asked that the court defer for at least six months deciding whether to sanction her so that she would have additional time to demonstrate that a sanction is not necessary or appropriate. May 12, 2009 Hearing Tr. at 84-85; see also Feb. 10, 2009 Suzanne Sullivan Affidavit ("Aff.") ¶ 6. The court granted that request and, as a result, also deferred deciding whether to sanction the United States Attorney for failing to adequately train and supervise Ms. Sullivan. See Jones, 620 F.Supp.2d at 167-68, 185. In essence, the court found that there was reason to hope that the past would not be prologue, and that Ms. Sullivan, the new Attorney General, Eric Holder, and new leadership of the United States Attorney's Office would take actions that would obviate the need for sanctions. Id.
For the reasons described in this Memorandum, the court finds that this hope was not misplaced. Ms. Sullivan has continued her exceptional efforts to assure that her error is not repeated.
The United States Attorney's Office has made intensive efforts to better prepare its prosecutors to perform their duties to provide *149 discovery. While the court remains skeptical that training involving prosecutors alone will suffice, representatives of the United States Attorney participated in planning the educational program prompted by this case, which was organized by the Court and involved prosecutors, defense lawyers, judges, and a law professor. That program was voluntarily attended by the vast majority of Assistant United States Attorneys in this District and by an official of the Department of Justice responsible for the training of federal prosecutors. The new United States Attorney, Carmen Ortiz, participated in the program, welcomed the "unique opportunity" that the program offered, judged it to have "considerable value," and pledged her best efforts to assure that her prosecutors always "do the right thing."
In addition, in January, 2010, Attorney General Holder instituted a series of initiatives to assure that prosecutors understand their duties concerning discovery and discharge them in a way that is faithful to the Department of Justice's highest aspirations and finest traditions.
Experience causes the court to have some doubt about whether the government's initiatives will succeed. However, the violation of the defendant's rights in this matter was unintentional rather than deliberate,[1] and Ms. Sullivan is not likely to commit comparable errors in the future. The new Attorney General and the current United States Attorney have made serious efforts to reduce the risk that other prosecutors will make similar errors. Therefore, in an effort to recognize the positive developments since May, 2009, and to encourage their continuation, the court has decided not to sanction the serious errors that were made in this case.
II. BACKGROUND
Jones was charged with being a felon in possession of a firearm. If convicted of that charge, he would have been subject to a mandatory ten year sentence.
Jones filed a motion to suppress, alleging that the police did not have the reasonable articulable suspicion necessary to justify the seizure and the search of him that led to the discovery of the firearm at issue. As the court has previously explained:
[I]n an effort to justify the seizure of Jones, the government argued, and Boston Police Officer Rance Cooley falsely testified, that there was justification to stop Jones because, despite the dark and the distance between them, he identified Jones as he rode his bicycle down Middleton Street in Dorchester, Massachusetts. Cooley testified that his suspicions were raised when Jones pedaled away from him because Cooley knew Jones and Jones had never avoided Cooley before.
However, Cooley had on several earlier occasions told the lead prosecutor in this case, Suzanne Sullivan, that he did not recognize Jones on Middleton Street and did not identify the man who had been on the bicycle as Jones until later, when other officers had tackled Jones at another location. Cooley's important inconsistent statements were not disclosed to Jones until the court conducted an in camera review of Sullivan's notes, just before the suppression hearing was complete. Sullivan and her supervisor, James Herbert, acknowledge that Cooley's prior inconsistent statements constituted material exculpatory evidence, and that the failure to disclose them *150 violated the government's constitutional duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), its progeny, and the court's orders.
Jones, 609 F.Supp.2d at 115; see also id. at 115-18.
Cooley's prior inconsistent statements were discovered and disclosed in time for his false testimony to be discredited. Id. at 115, 121-22. Indeed, the government abandoned reliance on it. Nevertheless, the motion to suppress was denied on alternate grounds. Id. at 115, 122-29.
The court did, however, immediately consider whether sanctions should be imposed on Ms. Sullivan and/or the government. The court concluded that it was not appropriate to reward Jones, and punish the public, by dismissing the case against him because of the government's misconduct. Id. at 115. Nevertheless, the misconduct [was] too serious to ignore.
Jones, 620 F.Supp.2d at 164-65 (quoting Jones, 609 F.Supp.2d at 115, 121-29).
Therefore, the court provided Ms. Sullivan and the United States Attorney an opportunity to seek to show cause why sanctions should not be imposed on Ms. Sullivan and/or the government. See Jones, 609 F.Supp.2d at 115.
Both the then United States Attorney, Michael Sullivan, and Ms. Sullivan readily acknowledged that her notes containing important exculpatory information should have been provided to Jones before the hearing on his motion to suppress. See Feb. 10, 2009 Suzanne Sullivan Aff. ¶¶ 5, 6; Feb. 10, 2009 Michael Sullivan Aff. ¶ 7(c). Following a May 12, 2009 hearing, the court found that although Ms. Sullivan's errors were inexplicable and inexcusable, they were inadvertent mistakes made by "an earnest public servant" who was "genuinely contrite." See Jones, 620 F.Supp.2d at 166, 182-83. As of May, 2009, Ms. Sullivan had made extensive efforts to educate herself on a prosecutor's discovery obligations and was also being more closely supervised. Therefore, the court found that it was "unlikely that she will again violate her duty to provide discovery." Id. at 183.
However, the court also found that:
The Department of Justice and United States Attorney's Office fully share responsibility for Ms. Sullivan's misconduct. The Department hired a prosecutor who, despite long experience, did not understand her duties under Brady and Giglio [v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ], including her duty to review her notes and those of law enforcement agents for material exculpatory information. Ms. Sullivan was given training by the Department and United States Attorney's Office. However, at least with regard to discovery, it was obviously inadequate to serve its intended purpose.
Id. After admitted Brady violations were discovered in other cases, the last two United States Attorneys informed the court of the extensive efforts of the Department of Justice and their office to instruct prosecutors on their constitutional duty to disclose material exculpatory information to defendants. See, e.g., United States v. Castillo, Cr. No. 01-10206-MLW, Jan. 11, 2002 Michael Sullivan Aff., Jan. 17, 2002 Michael Sullivan Aff., March 19, 2002 Michael Sullivan Aff.; United States v. Diabate, Cr. No. 99-10253-MLW, Jan. 20, 2000 Donald Stern Aff. Yet these efforts proved to be insufficient to prevent the recurrence of serious errors in cases before this court and many others. See
*151 Jones, 620 F.Supp.2d at 170-76, 185-93.[2]
Nevertheless, in May, 2009, the court found that there was reason "to hope that the past will not be prologue." Id. at 183. After moving to vacate the unlawfully obtained conviction of Senator Ted Stevens and obtaining the dismissal of the case against him, Attorney General Holder, who had recently been appointed, "`announced comprehensive steps to enhance the Justice Department's compliance with rules that require the government to turn over certain types of evidence to the defense in criminal cases.'" Id. at 167 (quoting April 14, 2009 Department of Justice Press Release: Attorney General Announces Increased Training, Review of Process for Providing Materials to Defense in Criminal Cases, available at http://www.usdoj.gov/ opa/pr/2009/April/09-opa-338.html); see also id. at 183-84. Similarly, the then new Acting United States Attorney, Michael Loucks, "expressed his determination to improve his office's performance in discharging its duty to disclose material exculpatory evidence." Id. at 168.
Despite these promising signs, "[t]he persistent recurrence of inadvertent violations of defendants' constitutional right to discovery in the District of Massachusetts persuade[d] this court that it is insufficient to rely on Department of Justice training... alone to assure that the government's obligation to produce certain information to defendants is understood and properly discharged." Id. at 167. Therefore, preferring to try to promote improvement rather than to rely only on punishment to prevent errors, the court arranged for a program on discovery in criminal cases involving judges, defense lawyers, prosecutors, and a law professor, which was organized by United States District Judge Douglas P. Woodlock and Magistrate Judge Leo Sorokin. Id. at 167, 185.
In May, 2009, the court concluded that:
It has taken many disturbing experiences over many years to erode this court's trust in the Department of Justice's dedication to the principle that "the United States wins . . . whenever justice is done its citizens in the courts." Brady, 373 U.S. at 87, 83 S.Ct. 1194. It will take time for the performance of the Department to restore that faith. However, in the instant matter the court finds that it is most appropriate to defer deciding whether to impose sanctions in order to give Ms. Sullivan, the United States Attorney for the District of Massachusetts, *152 and the Attorney General an opportunity to begin to do so.
Id. at 184-85.
The educational program organized as a result of this matter was held on December 16, 2009. It had been stated in a December 8, 2009 Order that:
After the Program, the court will have to decide whether sanctions should be imposed on Ms. Sullivan and/or the United States Attorney's Office. Jones, 620 F.Supp.2d at 185. . . . [A] significant consideration will be whether any such sanction appears to be necessary or appropriate to deter future violations of the government's discovery obligations. The court's most fundamental interest is in assuring that the criminal proceedings it conducts are fair, and that the decisions made in those proceedings are properly informed and final. Honorable, able prosecutorsand there are manyshare these interests. Id. at 182 ("The court recognizes that many prosecutors strive earnestly and successfully to meet their discovery obligations.").
United States v. Jones, No. 106, 2009 WL 4730975 at *2 (D.Mass. Dec. 8. 2009).
In January, 2010, Ms. Sullivan and the government completed their supplementation of the record concerning the possible imposition of sanctions. As indicated earlier, and explained below, the court concludes that the imposition of sanctions is neither necessary nor most appropriate.
III. SANCTIONS ARE NOT BEING IMPOSED
Ms. Sullivan's conduct since May, 2009 reinforces the court's previously expressed view that she recognizes the gravity of her errors, is genuinely contrite, and is not likely to violate her duty to provide discovery to defendants in the future. See Jones, 620 F.Supp.2d at 183. After May, 2009, Ms. Sullivan participated in several more training programs concerning discovery presented by the United States Attorney's Office and the Department of Justice. See Dec. 30, 2009 Second Supplemental Aff. of Suzanne Sullivan ¶ 2. Among other things, she watched a mandatory two hour Department of Justice training video on "Brady and Giglio Issues" that analyzed discovery obligations in the context of specific cases, including the instant matter. Id.
Ms. Sullivan has also made exceptional, independent efforts to educate herself on her discovery obligations. These have included consulting with former federal prosecutors, defense lawyers, and law professors. Id. at ¶¶ 5, 6. In addition, she has reviewed information on websites of organizations such as The Innocence Project that promote improvements in the administration of criminal justice. Id. at ¶ 3. Ms. Sullivan reports that the information on those websites has provided her with "vivid reminders of the impact that prosecutorial action has on individuals in the system." Id.
Ms. Sullivan also voluntarily attended the December 16, 2009 training program prompted by this case. She reports that the program was "valuable," in various ways, including in emphasizing the need for prosecutors to be particularly thorough in searching for inconsistent statements made by witnesses, like the police officer in this case, previously found by a court to have been untruthful.[3]Id. at ¶ 8. Finally, Ms. Sullivan continues to consult a qualified *153 mentor in the United States Attorney's Office concerning discovery issues. Id. at ¶ 4.
Therefore, the court concludes that it is not necessary to impose a sanction on Ms. Sullivan in order to deter her from repeating the egregious errors that threatened to deprive a defendant of his constitutional right to due process and of his liberty for at least ten years.[4]
The question remains whether a sanction should be imposed on Ms. Sullivan and/or the government in an effort to prompt more effective training and supervision, and to generally deter other prosecutors from committing the type of serious errors in discharging their discovery obligations that have persistently recurred. See Jones, 620 F.Supp.2d at 169-75. The new United States Attorney, Ms. Ortiz, and her Assistants have generally responded to this matter in a positive and encouraging manner.[5] Since the instant matter arose, the United States Attorney's *154 Office has held five training sessions devoted exclusively to discovery obligations in criminal cases. Dec. 1, 2009 Aff. of James B. Farmer ¶ 3. In addition, each Assistant United States Attorney has been required to complete an additional four hours of discovery training mandated by the Department of Justice. Id. at ¶ 5. The United States Attorney's Office has also offered to work with each federal investigative agency in the District of Massachusetts to develop joint training on discovery issues, among other things. Id.
In addition, prosecutors participated in planning and presenting the December 16, 2009 program on discovery organized by the Court. United States Attorney Ortiz spoke at the program, characterizing it as a "unique" opportunity to have prosecutors, defense lawyers, and judges discuss critical issues of common concern.[6] Acknowledging again that "mistakes" had been made, Ms. Ortiz expressed her commitment to assuring that her prosecutors always "do the right thing."
Ms. Ortiz also successfully encouraged the vast majority of her prosecutors to attend the December 16, 2009 program. Sixty-nine of the 91 Assistant United States Attorneys in the Criminal Division, including prosecutors from Springfield and Worcester, attended the program, and were joined by 12 members of the Civil Division who sometimes work on criminal cases. Gov. Dec. 30, 2009 Response to Court's May 18, 2009, 620 F.Supp.2d 163 and Dec. 8, 2009 Orders at 8-9, 2009 WL 4730975. The DVD of the program will be made available to the Assistant United States Attorneys who did not attend. Id. at 9.
In addition, the December 16, 2009 program was attended by representatives of several District Attorneys, various federal investigative agencies,[7] and the official in *155 charge of training for the Boston Police Department.
Following the program, Ms. Ortiz characterized it as having "considerable value." United States Attorney's Dec. 30, 2009 Response to the Court's May 18, 2009 and Dec. 8, 2009 Orders at 1. She also made constructive suggestions for enhancing the value of possible future training programs involving prosecutors, defense attorneys, and judges.
As explained earlier, the court granted the request to defer deciding whether to impose sanctions in part to permit the then new Attorney General, Eric Holder, to begin acting on his pledge to improve the performance of the Department of Justice concerning its constitutional and other duties to provide discovery. An Assistant General Counsel from the Executive Office of United States Attorneys involved in training attended the December 16, 2009 program and had the opportunity to assess the potential of such a joint effort as a possible model for emulation by the Department.[8]
*156 In addition, on January 4, 2010, the Deputy Attorney General issued three memoranda regarding criminal discovery practices. Jan. 5, 2010 Supplement to Gov. Dec. 30, 2009 Response to the Court's May 15, 2009 and Dec. 8, 2009 Orders at 1. One is "a memorandum to all prosecutors containing guidance regarding criminal discovery that [Assistant United States Attorneys] should follow to help ensure that they meet discovery obligations in future cases. This memorandum covers such topics as where to look for discoverable information, and the need to disclose material variances in witness statements." Id.
The Deputy Attorney General has also directed each United States Attorney to review and, if necessary, revise his or her office's discovery policies to assure that they conform with the requirements of the law, the Federal Rules of Criminal Procedure, Local Rules, and relevant court practices.[9] United States Attorneys have also been directed to designate a discovery coordinator, who will be specifically trained to instruct his or her colleagues. Id., Ex. 1 at 1. In addition, new materials concerning discovery are being provided to prosecutors, and law enforcement agents will be trained by the Department of Justice as well.
It is too early to tell if the Attorney General's initiatives will make a difference. They are, however, a positive and promising response to the serious problems that have been manifested in cases before this court and many others. See, e.g., Stevens, 593 F.Supp.2d 177 (D.D.C.2009); id., No. 372, Cr. No. 08-231 (EGS) (D.D.C. Apr. 7. 2009) (Order); Shaygan, 661 F.Supp.2d 1289 (S.D.Fla.2009); United States v. W.R. Grace, No. 1147, Cr. No. 05-07-DWM, 2009 WL 1160401 (D. Mont. April 28, 2009) (Order); Kirk Johnson, Judge in Asbestos Case Angrily Lectures Prosecutors, N.Y. Times, Apr. 28, 2009, at A17 (discussing Judge Donald J. Molloy's criticism of federal prosecutors for failing to comply with discovery obligations); Jones, 620 F.Supp.2d at 170-74, 185-92 (listing cases).
Recent developments confirm the court's sense that while Ms. Sullivan made inexcusable and inexplicable errors, she did not engage in intentional misconduct because she had an "ends justifies the means" mentality or for any other reason. See Jones, 620 F.Supp.2d at 183. If this case had, however, involved intentional misconduct, a significant sanction would be essential.
The court hopes that Ms. Sullivan's experience will prompt other prosecutors to at least recognize that it is in their enlightened *157 self-interest to discharge their discovery obligations properly. In some instances, the failure to do so requires the dismissal of promising cases that they have worked hard to develop. See, e.g., United States v. Diaz, No. 158, Cr. No. 05-30042-MLW, 2006 WL 4940244 (D.Mass. Dec. 19, 2006)(government's motion to dismiss after a series of Brady violations prevented possible conviction of defendants who were videotaped selling drugs). Among other things, such dismissals may return undeserving, dangerous defendants to the community.
Moreover, it remains true that, as Attorney General Robert Jackson told the United States Attorneys in 1940, the American people "really want[] the right thing donewant[ ] crime eliminatedbut also want[] the best in our American traditions preserved." Robert. H. Jackson, United States Attorney General, Speech to the Second Annual Conference of United States Attorneys: "The Federal Prosecutor" (April 1, 1940) in In the Name of Justice at 173 (Timothy Lynch, ed., 2009).[10] Therefore, it is foreseeable that misconduct by a prosecutor will be publicized and injurious to his or her reputation. As Justice Jackson explained in attempting to persuade federal prosecutors not to engage in intentional misconduct:
[r]eputation has been called "the shadow cast by one's daily life." Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. . . . [The prosecutor] can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.
Id. The instant case is a reminder that even inadvertent serious errors may injure the reputation which every prosecutor should prize.[11]
It is, however, more than self-interest that should motivate a prosecutor to seek *158 to assure that he or she does not, even inadvertently, transgress. In Brady, the Supreme Court wrote that:
Society wins when not only the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when an accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts."
373 U.S. at 87, 83 S.Ct. 1194; see also Jones, 620 F.Supp.2d at 184. The Deputy Attorney General recently quoted this inscription in instructing federal prosecutors on the importance of properly discharging their discovery duties. See Jan. 4, 2010 Memorandum from David Ogden, Ex. 1. to Jan. 5, 2010 Supplement to Gov. Dec. 30, 2009 Response to the Court's May 15, 2009 and Dec. 8, 2009 Orders at 1. Prosecutors, like judges and all other human beings, are imperfect. Therefore, it is only a true rededication to the ideal described by the Supreme Court, and etched into the entryway to the Attorney General's office, that will protect the rights promised to all people by our constitution. The Attorney General's recent initiatives communicate a commitment to this ideal which the court hopes and trusts federal prosecutors will prove is more than rhetorical.
This court is satisfied that Assistant United States Attorney Suzanne Sullivan understands her obligations and is now properly prepared to discharge her duties. In doing so, she will contribute to giving integrity to the commitments recently made by the Attorney General and the United States Attorney for the District of Massachusetts. The interests of recognizing the seriousness of violations of an important constitutional duty and of sending a message to discourage other prosecutors from even inadvertently failing to satisfy their obligations weigh in favor of imposing sanctions in this case. In addition, candor compels the court to acknowledge that experience causes it to be somewhat skeptical about the reliability of the assurances that have been given by the Attorney General and United States Attorney. However, these interests and doubts are outweighed by the court's desire to recognize the positive and promising actions of Ms. Sullivan, the current United States Attorney, and the new Attorney General, and to encourage their determined efforts to reestablish the Department of Justice's finest traditions by their future actions.
Accordingly, no sanction shall be imposed on Ms. Sullivan or the government for their conduct in this unfortunate case.
ORDER
In the February 19, 2010 Memorandum and Order in this case, the court wrote that "[t]he Federal Bureau of Investigation ("FBI") and the Drug Enforcement Agency ("DEA") were notably absent from the long list of federal agencies [that United States Attorney Carmen] Ortiz stated were present" for the December 16, 2009 training program concerning the government's constitutional duty to disclose material exculpatory information to defendants that was presented pursuant to prior orders in this case. United States v. Jones, 2010 WL 565478 (D.Mass. Feb. 19, 2010) at *6 n. 7; see also United States v. Jones, 620 F.Supp.2d 163, 167, 185 (D.Mass.2009). On May 3, 2010, the government filed a motion stating that, unknown to Ms. Ortiz, the FBI was represented at the program by its Boston Field Division Associate Division Counsel.[1] The court accepts this *159 representation and welcomes this additional information.
NOTES
[1] If this matter had involved intentional misconduct, a significant sanction would have been required.
[2] Recent, prominent examples of cases involving Brady violations include the following. In United States v. Stevens, Judge Emmet Sullivan vacated the conviction of, and dismissed the case against, former Senator Ted Stevens of Alaska and appointed a special counsel to investigate and possibly prosecute federal prosecutors for criminal contempt. 593 F.Supp.2d 177 (D.D.C.2009); id., No. 372, Cr. No. 08-231(EGS) (D.D.C. Apr. 7, 2009) (Order); id., No. 375, Cr. No. 08-231(EGS) (D.D.C. Apr. 8, 2009) (Order). In the Southern District of Florida, Judge Alan Gold sanctioned the government and prosecutors individually for a wide array of misconduct, including violations of the duty to disclose material exculpatory evidence. See United States v. Shaygan, 661 F.Supp.2d 1289, 1295-96, 1306-07, 1310, 1315-19 (S.D.Fla.2009). Judge Gold imposed sanctions that included an order that the government pay approximately $600,000 of the defendant's legal fees under the Hyde Amendment. Id. at 1323. In United States v. W.R. Grace, in response to "clear and admitted violations of... Brady and Giglio," District Judge Donald Molloy instructed the jury to disregard the testimony of an important witness concerning one defendant. No. 1147, Cr. No. 05-07-DWM (D.Mont. Apr. 28, 2009) (Order at *6, *13). The jury ultimately found all of the defendants not guilty. See id. (May 8, 2009) (Jury Verdicts as to W.R. Grace; Jack W. Wolter; Henry A. Eschenbach; and Robert J. Bettacchi) (Nos. 1190, 1192, 1194, 1196).
[3] It would not be accurate or fair to portray Ms. Sullivan as merely a victim of his lack of candor. Boston Police Officer Cooley accurately wrote in his incident report that he did not recognize Jones as the man on the bicycle he saw briefly on Middleton Street before the man turned and peddled away. See Jones, 609 F.Supp.2d at 116. In speaking with Ms. Sullivan to prepare the government's opposition to the motion to suppress, Cooley twice stated that he did not recognize the man on the bike to be Jones until he was apprehended several blocks from Middleton Street. Nevertheless, in an effort to establish that there was reasonable suspicion to stop Jones, Ms. Sullivan wrote that on Middleton Street "`Cooley recognized Jones'" and considered his departure suspicious because "`in the dozens of prior encounters Officer Cooley had with Jones in the vicinity of that same neighborhood over the prior approximately two years, Jones had never attempted to flee from the officer.'" Id. (quoting Gov. Opposition to Motion to Suppress at 3, 11). This contention was reiterated in the supporting affidavit of Cooley, which Ms. Sullivan drafted. Id.
Similarly, prior to the hearing on the motion to suppress "Sullivan met with Cooley again. Cooley reiterated that he did not determine that the bicyclist was Jones until Jones was on the ground between Marden Avenue and Middleton Street." Id. at 117. Nevertheless, at the suppression hearing Sullivan repeatedly elicited from Cooley testimony that while on Middleton Street he recognized the man on the bicycle as Jones and was intent on catching him solely because Jones had never fled from him before. Id.
Therefore, Ms. Sullivan shares with Cooley the responsibility for the presentation of his false testimony. She is solely responsible for the failure to disclose to Jones Cooley's important, prior inconsistent statements. See Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (discussing "`the prosecutor's burden . . . to insure communication of all relevant information on each case to every lawyer who deals with it'" (quoting Giglio, 405 U.S. at 154, 92 S.Ct. 763)).
[4] The court has been informed that the Department of Justice Office of Professional Responsibility ("OPR") is investigating this matter in order to determine whether Ms. Sullivan should be disciplined by the Department. The Acting Counsel of OPR has agreed to provide OPR's report to the court. See Jones, Dec. 31, 2009 Order (attaching Nov. 19, 2009 letter from Mary Patrice Brown to Chief Judge Mark L. Wolf). However, the court wrote in May, 2009 and reiterated in December, 2009, that it did not intend to rely on the OPR investigation in deciding whether to sanction Ms. Sullivan. See Jones, 620 F.Supp.2d at 176; Dec. 31, 2009 Order (attaching Dec. 22, 2009 letter from Chief Judge Mark L. Wolf to Mary Patrice Brown). The court has not relied on OPR's investigation.
[5] The government's recent submissions have not been uniformly reassuring. For example, in the government's December 1, 2009 submission, signed on behalf of Ms. Ortiz by Assistant United States Attorney Dina Michael Chaitowitz, in contrast to the acceptance of legal responsibility and contrition expressed by Michael Sullivan and Suzanne Sullivan, the government for the first time argued that this matter did not involve a Brady violation because Cooley's important prior inconsistent statements were discovered by the court and disclosed to defense counsel. See Gov. Dec. 1, 2009 Response to the Court's May 18, 2009 Order, 620 F.Supp.2d at 171 n. 5. The government reasoned that "a Brady violation occurs only when material evidence has actually been suppressed." Id. at 171n. 5. In the context of this matter, the government's argument is a manifestation of the attitude that the Supreme Court condemned when it wrote that:
A rule [] declaring "prosecutor may hide, defendant must seek" is not tenable in a system constitutionally bound to accord defendants due process. . . . Prosecutors' dishonest conduct or unwarranted concealment should attract no judicial approbation.
Banks v. Dretke, 540 U.S. 668, 696, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004).
[6] A DVD of the program is hereby made part of the record in this case.
[7] The Federal Bureau of Investigation ("FBI") and the Drug Enforcement Administration ("DEA") were notably absent from the long list of federal agencies Ms. Ortiz stated were present for program. The FBI and DEA have, however, been the investigative agencies involved in a series of cases before this court in which the government violated its obligations to produce discovery. For example, in United States v. Salemme, 91 F.Supp.2d 141, 154 n. 3, 212-13 (D.Mass. 1999), this court:
issued general orders that had the effect of requiring the production of FBI documents memorializing Brian Halloran's claim that Bulger and Flemmi were responsible for the murder of Roger Wheeler. When found by Special Agent Stanley Moody, those documents were given to Barry Mawn, the Special Agent in Charge of the FBI in Boston, to review because, Moody said in an affidavit, they contained information that was "obviously highly singular and sensitive." They were not, however, produced in discovery in [Salemme] in time for the key witnesses, Rico and Morris, to be questioned about them. Rather, they were belatedly disclosed after repeated inquiries by the court. Similarly, important FBI documents concerning John McIntyre were also improperly withheld by agents of the Boston FBI until it was too late to question relevant witnesses concerning them.
United States v. Flemmi, 195 F.Supp.2d 243, 249-50 (D.Mass.2001).
The deliberate, delayed disclosure of the documents frustrated this court's ability to discern in Salemme the later proven fact that an FBI agent leaked information to informants James "Whitey" Bulger and Stephen Flemmi that prompted the murders of potential witnesses against them, John Callahan and John McIntyre, and others as well. See State of Florida v. John Connolly, No. 719, F-01-008287-D (Fla.Cir.Ct. Nov. 20, 2008) (Judgment of Guilt); Shelley Murphy, Miami Jury Convicts Connolly: Ex-FBI Agent Guilty of Murder, Boston Globe, Nov. 7, 2008 at A1; McIntyre v. United States, 447 F.Supp.2d 54 (D.Mass.2006), aff'd, 545 F.3d 27 (1st Cir. 2008); Litif v. United States, 2010 WL 325374 (D.Mass. Jan.29, 2010).
In United States v. Castillo, Cr. No. 01-10206-MLW, this court declared a mistrial in a case investigated by the FBI because of the government's failure to disclose important impeaching evidence. Among other things, the United States Attorney prompted the FBI Special Agent in Charge to issue a memorandum instructing his agents on the government's duty to disclose exculpatory information. However, after a second trial began, the case was dismissed with prejudice because the defendant was found to have been irreparably harmed by another failure to produce important exculpatory evidence.
In United States v. Diaz, Cr. No. 05-30042-MLW, another case investigated by the FBI, it was alleged that members of the Latin Kings gang distributed drugs. A mistrial was declared because the government had not searched all of the relevant FBI files, some of which contained undisclosed material exculpatory information. Shortly before the scheduled second trial, the government dismissed the case because it realized that it had repeated the error. Id. (D.Mass. Dec. 19, 2006) (Gov. Motion to Dismiss Without Prejudice) (No. 158).
In June, 2009, after the errors in the instant case were revealed, a case investigated by the DEA, United States v. Ocasio, Cr. No. 07-10102-MLW, was also dismissed at the government's request. As this court stated in granting the government's motion:
The DEA 6 [interview] report that's Exhibit 2 was prepared 8 months after an important event, the encounter in the lockup between [a key witness] Mr. Santos and Mr. Ocasio. Mr. Santos's identification of Mr. Ocasio in the lockup, which occurred before the photo identification occurred, . . . as the government recognizes, is . . . material to the issue of the admissibility of the photo identification and the government properly recognized that, in the circumstances, the photo identification was not reliable and could not be used in evidence. But even that belatedly prepared DEA 6 was disclosed very late. It was disclosed 10 months after it was prepared, 18 months after the event, and 16 months after the Local Rule required the disclosure of material exculpatory information relating to a foreseeable motion to suppress. At a minimum, those DEA 6 reports, Exhibits 1 and 2, reflect the failure of the DEA to properly train and supervise with regard to identification procedures and writing reports.
June 5, 2009 Tr. at 124.
[8] In June, 2009, the Judicial Conference Committee on Codes of Conduct revised its previous advice that judges should not participate in government sponsored training of only prosecutors or defense attorneys. See Advisory Opinion No. 108. Judges are now advised that they "may appear at `closed' programs (open only to a one-sided audience), but should be willing and available to participate in training for interested attorneys representing the other side." Id. Nevertheless, judges are still advised that they "should not provide guidance on the ins-and-outs of practice before their courts if the audience is closed and includes attorneys likely to appear before them." Id. Therefore, it may not be appropriate for a judge of the United States District Court for the District of Massachusetts to participate in an educational program only for prosecutors concerning the Court's practices and expectations regarding its Local Rules, which clarify and codify the government's discovery obligations in criminal cases. See Local Rules of the United States District Court for the District of Massachusetts 112.1 through 117.1. In order to secure judicial involvement in such programs, it may be necessary to make them open to defense lawyers as well as prosecutors. In any event, the reported success of the December 16, 2009 program prompted by this case has reinforced the court's view that such joint training has unique value to prosecutors, and to defense lawyers and judges as well.
[9] As the court has previously explained, the Local Rules of this District Court provide a detailed roadmap for the proper discharge of a prosecutor's duties concerning discovery in criminal cases. See Jones, 620 F.Supp.2d at 169-70. They "have been widely viewed as valuable and, indeed, worthy of emulation" by, among others, the Illinois Commission on Capital Punishment and the American College of Trial Lawyers. Id. at 170. Compliance with the Local Rules would prevent the inadvertent errors that have plagued this case and too many other cases in the District of Massachusetts.
[10] Attorney General Jackson's 1940 address to the United States Attorneys was included in the book distributed to the participants in the December 16, 2009 program. See Federal Criminal Discovery: Handbook Regarding Exculpatory & Impeachment Material 5 (MCLE 2009).
[11] The court recognizes that Ms. Sullivan's errors have been publicized and understands that this is painful to her. However, the court has not been influenced by that publicity in deciding not to sanction her.
Judicial proceedings and records are open to the public in part as a means of holding government officials, including prosecutors and judges, accountable to the public that they serve. "Public access to judicial records and documents [and proceedings] allow the citizenry to `monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system.'" Federal Trade Commission v. Standard Financial Management Corp., 830 F.2d 404, 410 (1st Cir.1987) (quoting In the Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir.1984)). See also Globe Newspaper Co. v. Fenton, 819 F.Supp. 89, 90 (D.Mass.1993) (access to records in criminal cases "plays a significant positive role in monitoring the fairness, efficiency, and overall performance of the Massachusetts criminal court system.").
Because the public is deeply interested in effective law enforcement, prosecutors often receive favorable public recognition for their cases. As the public is also deeply interested in the fairness of law enforcement, serious errors and intentional misconduct by prosecutors also often attract public attention. In essence, public acclaim, when warranted, and public criticism, when justified, are inherent features of a prosecutor's chosen profession. Therefore, a lawyer who achieves the extraordinary opportunity to serve as a federal prosecutor should not be regarded as punished when public attention is paid to his or her failure to discharge constitutional duties and to give integrity to our nation's commitment to law enforcement that is fair as well as effective.
[1] As no comparable representation has been made concerning the DEA, the court continues to understand that it was not represented at the December 16, 2009 program. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2026592/ | 330 B.R. 364 (2005)
In re ADELPHIA COMMUNICATIONS CORP., et al., Debtors.
Adelphia Communications Corp. and its Affiliated Debtors and Debtors in Possession and Official Committee of Unsecured Creditors of Adelphia Communications Corp., Plaintiffs,
v.
Bank of America, N.A., et al., Defendants.
Bankruptcy No. 02-41729 (REG), Adversary No. 03-04942 (REG).
United States Bankruptcy Court, S.D. New York.
August 30, 2005.
*365 *366 Kasowitz, Benson, Torres & Friedman LLP, by David M. Friedman, Esq. (argued), Andrew K. Glenn, Esq., Adam L. Shiff, Esq., Jonathan E. Minsker, Esq., Sean C. Shea, Esq., New York, NY, Klee, Tuchin, Bogdanoff & Stern LLP, by Edward T. Attanasio, Esq. (argued), David M. Stern, Esq., Martin R. Barash, Esq., Los Angeles, CA, for Plaintiff Official Committee of Unsecured Creditors.
Willkie Farr & Gallagher LLP, by Marc Abrams, Esq., Brian E. O'Connor, Esq., Paul Shaloub, Esq., Morris J. Massel, Esq., New York, NY, Boies, Schiller & Flexner LLP, by Philip C. Korologos, Esq. (argued), Eric Brenner, Esq., Armonk, NY, by George F. Carpinello, Esq., Albany, NY, for Plaintiff Debtors and Debtors in Possession.
Bragar Wexler Eagel & Morgenstern, P.C., by Peter D. Morgenstern, Esq., Gregory A. Blue, Esq. (argued), Debra Kramer, Esq., Kate Webber, Esq., New York, NY, for Plaintiff Official Committee of Equity Security Holders.
Simpson Thacher & Bartlett LLP, by Peter V. Pantaleo, Esq. (argued), John J. Kerr, Jr., Esq., William T. Russell, Jr., Esq. (argued), Sean Thomas Keely, Esq., Elisha D. Graff, Esq., New York, NY, for Defendants Wachovia Bank, N.A. and Wachovia Capital Markets, LLC.
Haynes and Boone, LLP, by Robin E. Phelan, Esq. (argued), Richard D. Anigian, Esq. (argued), Thomas E. Kurth, Esq., Dallas, TX, by Judith Elkin, Esq., New *367 York, NY, for Defendant Bank of America, N.A.
White & Case LLP, by Howard S. Beltzer, Esq., Glenn M. Kurtz, Esq. (argued), Karen M. Asner, Esq., New York, NY, for Bank of America, N.A.
Milbank, Tweed, Hadley & McCloy LLP, by Luc A. Despins, Esq. (argued), Scott A. Edelman, Esq., Brian D. Hail, Esq. (argued), New York, NY, for Citibank, N.A. and Citicorp USA, Inc., as Administrative Agent for the Century TCI Facility.
Milbank, Tweed, Hadley & McCloy LLP, by James C. Tecce, Esq. (argued), Dennis F. Dunne, Esq., David R. Gelfand, Esq., Thomas A. Arena, Esq., Jeffrey L. Nagel, Esq., New York, NY, for Defendant JPMorgan Chase Bank, as Administrative Agent for the FrontierVision Lenders.
Mayer, Brown, Rowe & Maw LLP, by J. Robert Stoll, Esq., Robert J. Ward, Esq., Jean-Marie L. Atamian, Esq., Kenneth E. Noble, Esq. (argued), Scott E. Mortman, Esq., New York, NY, by Robert F. Finke, Esq., Chicago, IL, for Defendants Bank of Montreal and Harris Nesbitt Corp.
Luskin, Stern & Eisler LLP, by Michael Luskin, Esq. (argued), Trevor Hoffmann, Esq., New York, NY, for The Bank of Nova Scotia.
Chadbourne & Parke LLP, by Andrew P. Brozman, Esq. (argued), Janice A. Payne, Esq., Jennifer C. DeMarco, Esq., New York, NY, for Defendants Credit Lyonnais New York Branch, Credit Lyonnais Securities (USA) Inc., and LCM I Limited Partnership.
Clifford Chance, by Margot Schonholtz, Esq., Scott T. Talmadge, Esq. (argued), New York, NY, for Defendants CIBC, Inc. and CIBC World Markets.
Gibson, Dunn & Crutcher LLP, by Marshall R. King, Esq. (argued), Jonathan M. Landers, Esq., Robert F. Serio, Esq., Michael J. Passante, Esq., Michael J. Riela, Esq., New York, NY, for Merrill Lynch & Co., Inc.
Duane, Morris & Heckscher LLP, by Lawrence J. Kotler, Esq., Philadelphia, PA, for Defendant SG Cowen Company, LLC (f/k/a SG Cowen Securities Corp.).
Wilmer Cutler Pickering Hale & Dorr, LLP, by John A. Valentine, Esq. (argued), Theresa Titolo, Esq., Washington, D.C., by Phillip D. Anker, Esq., New York, NY, for Defendants Credit Suisse First Boston (USA), Inc. and The Royal Bank of Scotland PLC.
Cleary Gottlieb Steen & Hamilton LLP, by Lindsee P. Granfield, Esq. (argued), Jennifer L. Kroman, Esq. (argued), Mitchell A. Lowenthal, Esq., Thomas J. Moloney, Esq., David Bober, Esq., Jane Kim, Esq., New York, NY, for Defendants Thirteen Investment Banks.
Winston & Strawn LLP, by James A. Beha II, Esq., Steven M. Schwartz, Esq. (argued), New York, NY, for Defendant J.P. Morgan Securities, Inc.
Stroock & Stroock & Lavan LLP, by Brian Cogan, Esq., Lewis Kruger, Esq., New York, NY, for Defendants D.E. Shaw & Co., LLC and D.E. Shaw Laminar Portfolios, LLC.
Bingham McCutchen LLP, by Alexis Freeman, Esq., New York, NY, for Defendant GECC.
Greenberg Traurig, LLP, by Douglas A. Amedeo, Esq., Richard Miller, Esq., for Defendant Barclays Bank.
DECISION ON MOTIONS BY CREDITORS' COMMITTEE AND EQUITY COMMITTEE TO PROSECUTE CLAIMS ON BEHALF OF THE DEBTORS' ESTATES
ROBERT E. GERBER, Bankruptcy Judge.
By motion brought in this adversary proceeding under the umbrella of the *368 jointly administered cases of Adelphia Communications Corporation and its subsidiaries (collectively, the "Debtors" or "Adelphia") under chapter 11 of the Bankruptcy Code, Adelphia's Official Committee of Unsecured Creditors (the "Creditors' Committee") seeks leave of this Court what is colloquially referred to in this Circuit as "Housecraft" authority[1] to prosecute claims, as a co-plaintiff with Adelphia, on behalf of the Debtors' estates. The Creditors' Committee's motion is opposed by the defendants in the action to be prosecuted numerous commercial banks and their investment bank affiliates (the "Defendants") who are charged with wrongdoing in their dealings with Adelphia's former management, John, Timothy, Michael and James Rigas (the "Rigases"), against whom Adelphia brought suit for the looting of the company. The Creditors' Committee's claims against the Defendants, which are numerous, include, inter alia, fraudulent conveyance claims and claims for aiding and abetting the Rigases' breaches of fiduciary duty in connection with "co-borrowing" facilities under which Adelphia became liable to repay the banks for billions of dollars that went to or for the benefit of the Rigases.
Adelphia's Official Committee of Equity Security Holders (the "Equity Committee," and together with the Creditors' Committee, the "Committees"), which has intervened in this action, has joined in the bulk of the claims made by the Creditors' Committee all but those premised on insolvency and, by a supplemental intervenor complaint, wishes to assert additional claims as well. By a separate, similar motion, the Equity Committee moves for STN authority[2] to assert those additional claims on behalf of the Debtors' estates. The Defendants likewise oppose the Equity Committee's motion.
Perhaps significantly, neither of the Committees' motions is opposed by anyone other than the Defendants in the litigation to be prosecuted. Those with an interest in maximizing the value of the estate as contrasted to those with an interest in defeating the claims to be asserted here do not seem to be troubled by the Committees' proposed use of estate resources for the litigation the Committees wish to prosecute.[3]
*369 Though the words used by the Second Circuit in each of the cases in the STN Trilogy differ slightly, they share a common underpinning requiring the bankruptcy court to satisfy itself that the prosecution of the proposed litigation by the Committee concerned would be in the best interests of the estate. With the Court having concluded that the Creditors' Committee easily meets those requirements, and that the Equity Committee, though the matter is closer, does so as well, both motions are granted. The following are the Court's Findings of Fact, Conclusions of Law, and bases for the exercise of its discretion in this regard.
Facts
The Court considers the Creditors' Committee motion in the context of a complaint that the Creditors' Committee has already filed and served to meet a deadline that had been imposed upon it under Adelphia's DIP financing order with a stipulation that the Defendants' threshold opposition to standing, and substantive 12(b)(6) motions addressed to the Creditors' Committee complaint, would be considered together.[4] The Court likewise considers the Equity Committee's motion in the context of the supplemental complaint in intervention that the Equity Committee also has already filed and served, with similar understandings. The factual terrain includes the 12(b)(6) motions that the Defendants have filed, and the foreseeable outcomes on those motions.
The Court also has the benefit of evidentiary matter, submitted by the Committees and the Defendants, principally in the form of documents and deposition testimony taken under Fed. R. Bankr.P.2004. But for reasons discussed more fully below, it was inappropriate for the Court to conduct a "mini-trial" or evidentiary hearing on the Housecraft or STN issues, and it has not made factual findings on disputed issues of fact. While the Court has engaged in some review of disputed facts, it has done so (perhaps in an excess of caution, as language in STN suggests that factual review is not required)[5] only to satisfy itself that there is some factual support for the Committees' allegations without determining whether those allegations are true and to satisfy itself that the proposed litigation would be a sensible application of estate resources.
The two Committees' complaints are lengthy and detailed in each case about 250 pages. Without getting into all of the *370 detail that characterizes the allegations of the complaints and the factual record on this motion, the Court notes the most important allegations, and matters the Committees may be able to show, below.
A.
The Rigases are the largest shareholders of Adelphia, which was founded by John Rigas, but they are not its only ones. Much of Adelphia's equity securities are held by the investing public. Adelphia also has billions of dollars in public unsecured debt. Until May 2002, John Rigas, and his sons Timothy, Michael and James Rigas, held Adelphia's most senior management positions. John, Timothy, Michael and James Rigas, along with Peter Venetis, the husband of Ellen Rigas Venetis (John Rigas's daughter), were also Adelphia directors.
In May 2002, after disclosure (or, as some Defendants contend, increased disclosure)[6] in March 2002 and in the weeks thereafter of matters underlying this adversary proceeding most significantly, the Rigases' use of over $3 billion borrowed from the Defendant commercial banks under the co-borrowing facilities that Adelphia was obligated to repay the Rigases resigned as officers and directors of Adelphia.
But even before the Rigases' resignations, Adelphia had independent directors. The Committees allege that Adelphia's independent directors were not beholden to the Rigases, and were in a position to prevent the fraudulent conduct alleged in the complaints if the Rigases and their confederates had not concealed their fraudulent activities.[7]
The Committees' charges are fleshed out in considerably greater detail in their complaints and briefs, and will not be set out at comparable length here. The principal theme of the Committees' claims is that the Defendants knew of the Rigases' wrongful activity, and knowingly and materially assisted in it, because it was profitable for them to do so. The Committees allege that there were years of "concerted action" among the Rigases and the Defendants, which permitted both to enrich themselves at the expense of the Debtors and the Debtors' other creditors and public investors.[8] This "concert of action," the Committees charge, had four main components. First, they charge, the Rigases misused the Debtors'"credit support" to obtain financing for themselves from the banks that were agents for their syndicates (the "Agent Banks") and other lenders to finance the Rigases' lavish lifestyle and personal investments. Second, they charge, the Agent Banks made financial *371 accommodations to the Rigases through co-borrowing facilities structured by the Agent Banks and, the Committees emphasize, by their affiliated investment banks (the "Investment Banks") that violated fundamental lending practices (including, it is argued, their own), in order to obtain lucrative fees for their affiliated Investment Banks and thereby obtain a return on capital that was materially in excess of the return that would be associated with commercial banking alone, and which was "essential to ensure the profitability of their relationship with Adelphia."[9] Third, the Committees charge, the affiliated Investment Banks underwrote securities offerings for Adelphia and certain of its subsidiaries without disclosing "the fraud they knew suffused Adelphia's financial statements"[10] to raise from public investors the money that the Debtors could have used to pay back the amounts that the Rigases borrowed from the Agent Banks. And fourth, the Committees charge, the Investment Banks used their purportedly independent analysts to issue materially misleading research reports in order to artificially inflate both the value of the Adelphia securities underwritten by the Investment Banks and the value of the "tainted bank debt" being sold by the Agent Banks in the secondary market.[11]
A major aspect of the Rigases' breaches of fiduciary duty and fraud, as charged by the Committees, was the Rigases' ostensible efforts to reduce Adelphia's higher than average leverage by equity infusions, paid for with borrowings upon which Adelphia was liable as allegedly masked by heavy use of "off-balance sheet" debt. The Committees have adduced evidence of knowledge on the part of some Agent Banks or Investment Bank affiliates of the off-balance sheet liabilities,[12] in documents that could fairly be said to show that they had greater knowledge than the public did with respect to Adelphia's off-balance sheet liabilities, and, arguably, the uses to which their credit support had been put.
The Defendants dispute these allegations (along with many of the Committees' more specific allegations with respect to the foregoing) and also raise numerous issues of law. The Defendants' many defenses include, most significantly, as a factual matter, the denial that they knew of any fraud (and that they knew of anything that, if public disclosures had been read more carefully, creditors and investors also would know), and that the facts and transactions underlying the Rigases' fraud were known to Adelphia's independent directors. The Defendants' defenses include, as a legal matter, inter alia, assertions that they are not responsible for the uses to which funds borrowed from the defendant commercial banks or raised by the defendant investment banks were put; that the claims asserted by the Committees belong instead to individual investors; and that the wrongful actions of the Rigases should be imputed to the estate's innocent creditors and non-insider equity holders, under the doctrine of in pari delicto. The Defendants also dispute, as a matter of law, assertions by the Committees that commercial and investment banks dealing with Adelphia in the manner in which they are alleged to have done so should be deemed to have entered into fiduciary relationships with Adelphia.
As noted above, the Defendants filed numerous 12(b)(6) motions with respect to *372 the Committees' claims. Though the Court's decision on those motions, which necessarily will be lengthy, will have to come at a later date, it is plain to the Court, based on its consideration of the legal issues underlying those motions to date, that while some of the Creditors' Committee's claims will be dismissed, the bulk of them will survive dismissal under Rule 12(b)(6). The Court further believes that while a materially greater percentage of the Equity Committee's claims will not survive the 12(b)(6) motions, some of the Equity Committee's claims will now survive, either because those claims have apparent support or because the Equity Committee has said what needs to be said to satisfy the pleading requirements for such even though such claims, after factual development, might not withstand summary judgment motions.
It also is plain to the Court, based on apparently undisputed facts and matters as to which the Committees have made evidentiary showings (by e-mails, other documents, and deposition testimony), that there is, at the least, reasonable basis to conclude that the Committees would succeed in proving material portions of the factual matters they allege.
B.
By stipulation dated July 24, 2003, Debtor Adelphia and the Creditors' Committee agreed that they would join as co-plaintiffs to bring this action. They agreed that the Creditors' Committee would take the lead in prosecuting the action, subject to certain Debtor rights, one of which was the Debtors' right to settle the action, pursuant to a plan or otherwise.[13]
The Equity Committee intervened in this action, joined in the claims already asserted by Adelphia and the Creditors' Committee (except for those premised on insolvency), and sought STN authority to assert additional ones. Adelphia did not join in the additional Equity Committee claims as a co-plaintiff, as it had with respect to the claims brought by the Creditors' Committee, but did not object to their prosecution.
Discussion
A.
The Bankruptcy Code does not, in express terms, authorize committees or individual creditors as contrasted to trustees and debtors in possession to sue on behalf of the estate. Nevertheless, the Second Circuit has held that provisions of the *373 Bankruptcy Code imply a qualified right for creditors' committees to sue on behalf of an estate with bankruptcy court approval.[14] The practice of authorizing the prosecution of actions on behalf of an estate by committees, and even by individual creditors,[15] upon a showing that such is in the interests of the estate, is one of long standing, and nearly universally recognized.[16]
The practice, which has been established in the Second Circuit under the STN Trilogy and countless lower court cases, is a salutary (and many might say essential) element of the chapter 11 process. Debtors sometimes lack the inclination, or the means, to bring actions that should be prosecuted. They sometimes have higher priorities, or are distracted by other things. They sometimes have a practical need to avoid confrontation with entities like their secured lenders, because they need those entities' continuing cooperation as, for example, in connection with exit financing. And they sometimes are limited by DIP financing orders that foreclose or impair their ability to bring claims against certain entities (such as prepetition secured lenders), so that such claims must be brought by creditors or not at all. The caselaw authorizing the prosecution of suits on behalf of estates by committees and creditors, as reflected in the STN Trilogy and the many other cases holding likewise, provides creditors and other stakeholders with the comfort that potentially valuable (and sometimes critical) claims on behalf of the estate will be prosecuted without requiring bankruptcy judges to throw out the baby with the bath water, resorting to much more draconian or ineffective mechanisms to ensure the prosecution of those claims,[17] with the destruction to going concern value and creditor recoveries that would frequently be the result.
*374 In STN, the first of the STN Trilogy, the Second Circuit confirmed the authority of bankruptcy courts to deputize committees to prosecute litigation on behalf of the estate with the approval of the bankruptcy court.[18] Approval would be appropriate where the committee presented a colorable claim or claims for relief that on appropriate proof would support a recovery, and where the trustee or debtor in possession unjustifiably failed to bring suit or abused its discretion in not suing.[19] In considering the failure to bring suit, the lower courts were directed by the Circuit to consider whether an action asserting the proposed claims would be likely to benefit the reorganization estate,[20] and as part of any such analysis, each lower court was directed to "assure itself that there is a sufficient likelihood of success to justify the anticipated delay and expense to the bankruptcy estate that the initiation and continuation of litigation will likely produce."[21]
Commodore extended the STN principles to encompass situations where the debtor in possession, while not prosecuting the litigation itself, consented to its prosecution by a committee. In Commodore, the Second Circuit ruled that a committee could appropriately act on behalf of the estate under such circumstances, with the approval of the bankruptcy court:
if (1) the committee has the consent of the debtor in possession or trustee, and (2) the court finds that suit by the committee is (a) in the best interest of the bankruptcy estate, and (b) is `necessary and beneficial' to the fair and efficient resolution of the bankruptcy proceedings.[22]
The Circuit observed that this approach permitted a reasoned and practicable division of labor between the creditors' committee and the debtor in possession or trustee, while also providing bankruptcy courts with significant authority both to manage the litigation and to check any potential for abuse by the parties.[23]
Then Housecraft, the third of the cases in the STN Trilogy, extended these principles further. As noted above, Housecraft permits the bankruptcy court to confer standing upon a committee to sue as a co-plaintiff with the debtor on behalf of the estate, with the approval of the bankruptcy court. The bankruptcy court can provide that approval when the requirements of Commodore are satisfied when the litigation is "both in the best interest of the bankruptcy estate and necessary and beneficial to the fair and efficient resolution of the bankruptcy proceedings."[24]
B.
The Creditors' Committee notes at the outset of its presentation that the Debtors have joined in its claims. It properly observes, *375 accordingly, that the Court need only satisfy itself as to the remainder of the Housecraft tests that the litigation the Creditors' Committee proposes to bring be (a) in the best interest of the bankruptcy estate and (b) necessary and beneficial to the fair and efficient resolution of the bankruptcy proceedings.
Though the Second Circuit, in Housecraft and Commodore, applied those standards to the relatively clear factual situations then before it, the Circuit did not dictate more particularized criteria for evaluating those considerations. But it is plain by the express words used by the Circuit; by examination of the factors the Circuit itself considered; and by other common sense factors that necessarily would have to be considered in determining whether any litigation is in the interest of the bankruptcy estate and necessary and beneficial to the bankruptcy case that the inquiry must evaluate, at the least,[25] whether the prosecution of the claims is consistent with the maximization of the value of the estate. Additionally, the Ninth Circuit BAP has identified particular factors to be considering in implementing the Ninth Circuit's similar doctrine authorizing the deputization of committees to act on behalf on an estate.[26] To the extent the Ninth Circuit BAP's factors do not overlap with considerations in this Circuit (which, not surprisingly, they do in material respects), the Court considers them as well. The Ninth Circuit BAP's additional factors include whether the deputization of the committee would permit the debtor to concentrate its resources on rehabilitating its business; whether the committee's interests do not conflict with those of the estate; and whether the assignment would prejudice the equality of distribution amongst the debtors' creditors.
As part of their differences on the components of the Housecraft analysis, the two sides differ sharply on the means and standards by which the Court considers the litigation's prospects. In that connection, the Court is not in a position to fully endorse the position of either side. Several of the Defendants contend that the Court must conduct a de facto mini-trial on the merits to determine whether the Creditors' Committee has a probability of success before granting the Creditors' Committee standing.[27] But the Court cannot agree. In STN which, of the three cases in the STN Trilogy, most explicitly requires consideration of the merits of the proposed litigation[28] the Second Circuit *376 explicitly stated that a mini-trial is not required,[29] and there is no reason why it would be any more necessary in Commodore or Housecraft scenarios, especially since they do not even involve differences of views between the committee and debtor in possession as to whether the litigation should be brought.
By the same token, the Creditors' Committee argues that Adelphia's consent to its standing vitiates any need to review the merits of the Committees' claims.[30] The Court is not of a mind to go that far. The Creditors' Committee is correct in its observation[31] that the standards enunciated in Commodore and Housecraft, unlike those in STN, do not by their terms call for consideration of the merits, and that the context in which the Circuit called for a merits inquiry in STN involved whether or not the debtor or trustee had unjustifiably failed to bring suit. But in Commodore and Housecraft situations as well, a requirement for some kind of merits inquiry necessarily must be implied, as it is impossible to determine whether a litigation is in the best interests of an estate without at least some consideration of the possibilities of success. The standard, as discussed below, is not a difficult one to meet, but the Court must nevertheless be comfortable that the committee is not embarking on a senseless enterprise.
Neither Commodore nor Housecraft speaks to the likelihood of success that would be required to pass muster. STN required the claims to be "colorable,"[32] and that expression has repeatedly been used in articulating the appropriate standard on both STN[33] and Commodore Housecraft[34] motions. This Court likewise utilizes that standard here.
Caselaw construing requirements for "colorable" claims has made it clear that the required showing is a relatively easy one to make. In STN, the Second Circuit eschewed extensive merits review, requiring instead "a colorable claim . . . for relief that on appropriate proof would support a recovery."[35] In this district, on STN motions, Chief Judge Brozman has observed that authorization should be denied only if the claims are "facially defective,"[36] and Judge Gonzalez has noted that in determining whether there is a colorable claim, the court must engage in an inquiry that is "much the same as that undertaken when a defendant moves to dismiss a complaint for failure to state a claim."[37]
*377 Outside this district, on Commodore motions, the Colfor court observed, consistent with the common meaning of "colorable,"[38] that the claims to be asserted should be "plausible" or "not without some merit,"[39] and the iPCS court, consistent with KDI, noted that the requisite inquiry would be "much the same as that undertaken when a defendant moves to dismiss a complaint for failure to state a claim."[40]
C.
Applying the factors in the caselaw described above, the Court determines that the Creditors' Committee has easily satisfied the requisite standards.
1. Colorable Claims?
The Creditors' Committee has put forth an extraordinarily detailed complaint, painting a picture that if proven could establish that the Defendants were the recipients of fraudulent conveyances costing the Debtors' estates billions of dollars, and that the Agent Banks and Investment Banks were guilty of a classic aiding and abetting of the Rigases' wrongful activities. It is plain to this Court that the Creditors' Committee has much more than satisfactorily alleged a complicity with the Rigases that went considerably beyond ordinary business transactions and routine business dealings and that the Creditors' Committee, if its proof could substantiate its allegations, could show, inter alia, knowing substantial assistance to the Rigases in connection with the co-borrowing facilities, motivated by the Agent Banks' and Investment Banks' economic self-interest in their Adelphia relationship which, at the time, was in material respects a relationship with the Rigases individually.
Of course, the Defendants have already asserted numerous defenses, and undoubtedly will have those and more things to say as the litigation goes on. The Creditors' Committee's allegations have not yet been proven, if they ever will be, and some of its claims (such as those premised on insolvency) may turn out to rest on predicates that may not be established, or that may be established for some entities in the Adelphia capital structure but not others. But the great bulk of the matters that underlie the Creditors' Committee's claims will involve issues of fact and context, all requiring further factual development and inquiry, and, quite possibly, trial.
In opposing the motion, the Defendants, or a subset of them, challenged or sought to advance their explanations as to aspects of the Creditors' Committee's allegations or proof, or to argue additional facts such as those underlying contentions that appropriate disclosure had, in fact, been made; that the public should not have been fooled; and even that there had been no fraud at Adelphia at all. The Defendants also moved against the great bulk of the Creditors' Committee's claims for relief, challenging the legal theories on which the Creditors' Committee would proceed. But the Defendants' arguments in the former category, relating to factual challenges, factual explanations, and factual supplements, are, as the Court has just *378 noted, simply one side's position on disputed issues of fact.[41] And the Defendants' legal contentions, while they will likely result in 12(b)(6) dismissal of some of the claims, fall far short of being "show-stopper" issues that could presage defeat for the Creditors' Committee in the litigation as a whole, especially before factual inquiry.
One of those legal contentions, important because so many of the Defendants devote so much time and energy to it, warrants express mention here. Relying upon the Second Circuit's decision in Shearson Lehman Hutton, Inc. v. Wagoner,[42] and its progeny[43] (decided under New York and Connecticut law), and the Third Circuit's decision in Official Committee of Unsecured Creditors. v. R.F. Lafferty & Co., Inc.[44] (decided under Pennsylvania law), the Defendants ask this Court now to conclude that by reason of the "Wagoner Rule,"[45] the Creditors' Committee's litigation *379 would be pointless. The Defendants contend that the second prong of the Wagoner Rule which immunizes defendants from liability for otherwise actionable wrongful conduct on "in pari delicto" grounds, by imputation to a bankruptcy trustee or deputized creditors' committee of the predecessor management's wrongful conduct absolves the Defendants from any liability they might otherwise have here, as a matter of law.
In its response, the Creditors' Committee properly assumes that to the extent that the state law underlying the federal court decisions[46] in Wagoner and its progeny is applicable and remains good law, Wagoner and its Second Circuit progeny are binding authority on this Court. But the Creditors' Committee argues that there are nevertheless several reasons why the in pari delicto doctrine and the Wagoner rule would not bar recovery on behalf of the Adelphia Debtors here, even under the Second Circuit decisions. First the Creditors' Committee notes that the "adverse interest" exception to the in pari delicto and Wagoner Rule defenses precludes imputation where the agents were acting to advance their own interests, and not those of the debtor[47] as the Rigases are alleged to have done here. Then the Creditors' Committee notes another exception to the application of in pari delicto: that an in pari delicto defense does not bar recovery by the estate upon a showing of one or more decision makers that could have stopped the fraud or breaches of fiduciary duty[48] as Adelphia's independent directors, shortly before Adelphia's bankruptcy, at least assertedly (and possibly without dispute) could do here, and did do here.
The Creditors' Committee further argues that since the determination as to what is or is not property of the estate (such as a cause of action for injury to the *380 estate) is measured, under section 541 of the Bankruptcy Code, as of the time of filing, where (as here) the wrongdoing insiders were ousted prior to the filing, an in pari delicto defense would not apply. And the Creditors' Committee finally argues reasoning, with some force, that Pennsylvania law would apply to the tort claims in this case that the Pennsylvania Supreme Court has rejected the application of in pari delicto when its effect would be to penalize a victim debtor (and hence its innocent creditors), and that the better reasoned federal analyses under Pennsylvania law have done likewise.
The Creditors' Committee's final two points that under traditional Bankruptcy Code section 541 analysis, the prepetition ouster of the insider wrongdoers would make in pari delicto inapplicable,[49] and that Pennsylvania would not respect in pari delicto defenses under the facts presented here[50] have considerable merit, and could make the first two points academic. But it will be unnecessary for this Court to decide them on this motion. That is so because the Committees' first two points as to the "adverse interest" and "innocent decision-maker" exceptions will be incapable of resolution under Rule 12(b)(6), and will require factual inquiry. Even assuming, without now deciding, that Pennsylvania law were to regard in pari delicto as having any application to claims by innocents on behalf of a bankruptcy estate,[51] it is at least arguable, given the facts of which this Court has already become aware while supervising Adelphia's action against the Rigases, and observing *381 the Government's criminal prosecution of John, Timothy, and Michael Rigas, that the Creditors' Committee will be able to make the necessary factual showing to make out the "adverse interest" exception.[52] In any event, the Creditors' Committee has satisfactorily pleaded the facts necessary to trigger the exception, and that will present an issue of fact, plainly inappropriate for determination under Rule 12(b)(6).
Likewise, the Creditors' Committee has satisfactorily pleaded the facts necessary to trigger the "innocent decision-maker" exception. Determining whether that exception applies, in light of the totality of the circumstances concerning the knowledge and actions of Adelphia's outside directors (and their actions, in particular, in the period March through May 2002, when they made supplemental disclosures and ousted the Rigases), will present an issue of fact.[53]
Some of the matters alleged by the Creditors' Committeee.g., that the Defendants themselves owed fiduciary duties to Adelphia (as contrasted to aiding and abetting breaches of fiduciary duty by the Rigases), and that Defendants are liable here for losses suffered by investors in Adelphia debt offerings (as contrasted to losses suffered by Adelphia itself, whose stakeholders will share in the Debtors' value in accordance with priorities under law, under a chapter 11 plan) may not withstand the Defendants' pending 12(b)(6) motions. But the bulk of the Creditors' Committee's claims would, if proven, provide valid bases for relief. Those claims should be evaluated on their respective merits.
Additionally, the Creditors Committee has put forward some of its proof. Though it is not clear that the Court needs to,[54] the Court has reviewed that evidence, some of which was referred to above. Though the Court does not need to find (and does not now find) that the Creditors Committee has established a likelihood of success, it can and does find that that the Creditors Committees claims have at least some factual support.
It should be remembered, of course, that a determination on an STN or Housecraft motion that claims are colorable simply satisfies a condition for permitting the issues to be decided where they should be decided in the plenary litigation itself, where the need to prove allegations will remain, and where factual and legal claims and defenses can and will be considered on their individual merits.
2. Permitting Debtor to Concentrate Its Resources on Rehabilitating Business
The first of the other factors identified by the Ninth Circuit BAP in Spaulding *382 Composites is whether the prosecution of the estate's claims by a committee would permit the debtor to concentrate is resources on rehabilitating its business. That factor plainly supports granting the Creditors' Committee standing.
The Adelphia chapter 11 cases have been complex, and it is fair to say, though an understatement, that the Debtors have had their hands full. Among many other things, the Debtors have been busy, at various times during these cases (and particularly when these claims, if they were to be made, had to be brought):
. Stabilizing the Debtors' business, particularly in light of accounting uncertainties that resulted from the Debtors' management in the Rigas era;
. Prosecuting claims against the Rigases, which the Debtors needed to do intensively if they were to have any hope of prevailing over billions of dollars in competing claims;
. Trying to avoid an indictment by the Justice Department of the corporate enterprise, and to defeat a very large claim by the SEC;
. Addressing the competing desires of stakeholders, with both negotiating and litigation discovery demands, initially with respect to controversies between creditors and equity holders, and later (and currently) in connection with intercreditor disputes; and, perhaps most significantly,
. Devoting extraordinary time and effort to the marketing of the Debtors' business, which ultimately led to the prospective sale to Comcast and Time Warner.
Suit by the Creditors' Committee has freed up the Debtors to address these important concerns.
3. Do Committee Interests Conflict With Those of the Estate?
Considering the second factor in Spaulding Composites, there is no conflict whatever. To the contrary, the effort by the Creditors' Committee, if successful, would augment the Debtors' estates (or reduce their liabilities), with no adverse consequences whatever. The reservation by the Debtors of the ability to settle these cases protects the estates from the non-existent conflict even more.
4. Would Assignment Prejudice the Equality of Distribution Amongst Creditors?
Considering the fourth[55] factor in Spaulding Composites, this factor is essentially inapplicable here. The circumstances where it would really be relevant if those bringing the litigation would get a disproportionate share of any recovery are wholly absent here, where those with rights to distributions in the Debtors' estates will share in the value of those estates (as augmented by any recoveries the Committees can garner) in accordance with the usual statutory priorities. No member of either Committee will receive any additional consideration because of such Committee's representation of the estates. This factor is relevant, in the Court's view, principally where the proponents of the litigation wish to sidestep the normal equality of distribution amongst creditors, or to circumvent statutory priorities. While, under such circumstances, that would be a matter of concern for this *383 and many other bankruptcy courts tipping against granting authority, it has no application here.
5. Is Litigation Consistent With Maximization of Value of Estate?
While, as noted, extensive merits inquiry on a motion of this character is not required, this Court believes that any "best interests of the estate" analysis requires consideration of whether the proposed litigation is consistent with the maximization of the estate.[56] This factor, in the Court's view, gets to the nub of the issue, and strongly favors granting leave here. While the Defendants plainly have defenses that will require serious consideration, and likely will have more to say when the facts are explored, the substantial sums to be recovered which are, of course, a function of the damage done to Adelphia and its stakeholders more than justify the substantial sums that prosecuting the litigation would cost. The Creditors' Committee is correct in its assertion[57] that if it is successful, the recovery will augment the estates by billions of dollars, at a relatively modest cost. And it is equally correct in its assertion that denying it standing could result in the waste of one of the estate's most valuable assets.[58] Even recognizing that some of the Committees' claims will not withstand motion and that others will be subject to proof, the Committees have satisfied the Court that the litigation has enough of a chance to be successful, to be much more than a reasonable economic bet.
6. Other Factors
Sometimes other factors, though not specifically or extensively identified in earlier caselaw, nevertheless should appropriately be considered. One such factor is whether prosecution of the litigation would impede the Debtors' reorganization or assist it. Here the prosecution of the litigation would, at the least, not impede the Debtors' reorganization. Under all plan proposals advanced to date, the claims to be litigated would not need to be resolved prior to confirmation. To the contrary, those Defendants who are entitled to plan distributions will receive them, subject only to the duty to pay the distributions back, or otherwise to make payment, to the extent any liability is established. Reorganization would not be a hostage to the determination of this litigation, and no delay to emergence from chapter 11 will result from the pendency of the proposed litigation. And while the Debtors plainly have many responsibilities that they will necessarily have to meet to achieve a successful reorganization, the incremental burdens on the Debtors as a consequence of the prosecution of the litigation, as discussed above, would be modest in comparison to the prospective gains.
Another factor is that, early in these cases, when the Debtors sought and obtained their DIP financing, the Debtors' prepetition secured lenders, who were "primed" by the postpetition financing, required *384 provisions in the DIP financing order cutting off issues on which the Debtors could litigate against those lenders (all or most of which are Defendants here), and setting a time limit by which any claims against the lenders by committees or individual creditors had to be brought.[59] It was necessary (and typical) for the Debtors to accede to such a provision, and for the Court to approve it. Provisions of that character are common in DIP financing orders in chapter 11 cases (at least where prepetition lenders are asked to make concessions to permit the postpetition financing), but bankruptcy courts normally approve them only where some entity typically a creditors' committee has the ability to assert those claims.[60] If the Court were then to deprive the Creditors' Committee of standing, that would undercut one of the critical premises upon which those limitations were approved in these chapter 11 cases. It would deprive the estates of the opportunity to pursue claims that, whether or not they ultimately will be meritorious, plainly deserve to be pursued.
7. "Best Interests of the Estate" and "Necessary and Beneficial" Overview
Upon the foregoing analysis, it is obvious to the Court and not just true on balance that the prosecution of the litigation by the Creditors' Committee here would be in the best interests of the estate. That determination is, to be blunt about it, an easy one. The potential recoveries would be enormous; the cost of prosecution will be relatively modest (by the standards of the amount at stake); and the bulk of the Creditors' Committee claims will easily withstand 12(b)(6) motions, and (to the extent the Court needs to consider this) have factual support.
D.
The analysis with respect to the additional claims to be brought by the Equity Committee is similar, though considerably closer principally because the Equity Committee's additional claims, in material respects, push the envelope vis-à-vis their underlying legal and factual predicates.
In its intervenor complaint, the Equity Committee asserts claims against the Agent Banks on the co-borrowing facilities under RICO; against Salomon Smith Barney and certain other underwriters of Adelphia securities for breach of contract, negligence, and related claims; against the *385 Agent Banks for fraudulent concealment; and against the Agent Banks for fraud.[61]
The Equity Committee's RICO claims, which are plainly the most dramatic, in many respects push the envelope the most. The Equity Committee alleges that Adelphia itself was one of the two RICO enterprises that are alleged, and that the Agent Banks, by their lending facilities, thereby met the requisite requirements for acquiring or maintaining their interests in, and control of, the enterprise. Even assuming (as the Court believes it should for the purposes of these motions) that the Creditors' Committee can prove what it has alleged on these motions, it is not clear that the Equity Committee will be able to do likewise on the incremental claims the Equity Committee wishes to assert. In particular, it is not clear whether, after the facts are developed, the Equity Committee will be able to show that the co-borrowing facilities led to the requisite degree of acquisition and/or control, and for the Equity Committee to meet RICO's continuity requirement. Yet the Equity Committee's intervenor complaint has made the necessary allegations to state a prima facie case. And since STN states explicitly, in connection with its colorable claim requirement, that a colorable claim is one "that on appropriate proof would support recovery," addressing any shortcomings in proof likely would be appropriate, at the earliest, on summary judgment and not motions under 12(b)(6).
The Equity Committee's claims against Salomon Smith Barney, for breach of contract and negligence in connection with a fairness opinion Salomon Smith Barney provided with respect to the amounts paid by the Rigases for their Adelphia stock, plainly raise, at the least, colorable issues. And the Equity Committee's breach of contract claims against the other Defendant Investment Banks, while weaker, are again more appropriately determined at the time of summary judgment, or thereafter, and not on motions to dismiss.
However, while the Equity Committee's claims for conspiracy to commit fraud are colorable at this stage in the litigation, the claims against the Agent Banks for common law fraud and fraudulent concealment (as contrasted to aiding and abetting breaches of fiduciary duty and fraud) likely will not withstand motion, for lack of representations and omissions when under the duty to speak, and as the essence of the claims is a failure to tell others at Adelphia things that the Rigases already knew.
Thus, while some of the Equity Committee's claims will likely not survive 12(b)(6) motions, and while others especially the RICO claims will be at some substantial risk at the time of motions for summary judgment, some of the Equity Committee's claims have potential promise. Those in the latter two categories are at least colorable.
But while the ultimate prognosis may not be particularly optimistic for all but a few of the Equity Committee's claims, the "ultimate prognosis" is not the test, as the discussion above makes clear. And the Court necessarily must consider the fact that the Equity Committee does not propose asserting its supplemental claims in isolation, but rather as an adjunct to the *386 claims the Creditors' Committee will assert. As the Equity Committee fairly observes, its motion does not present the Court with the more common cost-benefit analysis where the cost of an independent full-blown litigation must be analyzed. Here the Court must consider the incremental cost of permitting the Equity Committee to pursue the additional claims it wishes to assert. And here the incremental cost of prosecuting the Equity Committee's claims will be quite small at least in the context of the claims already to be asserted by the Creditors' Committee, and the potential rewards of success on even one of the Equity Committee's claims.
Factors unrelated to the strengths of the prospective claims themselves, discussed above in connection with the claims to be asserted by the Creditors' Committee, are in all material respects identical when applied to the incremental claims to be asserted by the Equity Committee. And the Court once more observes that no non-Defendant stakeholder opposes the assertion by the Equity Committee of its claims.
Thus, as the bulk of the Equity Committee's claims are colorable, and given the relatively modest incremental expense to the estate that would result from the Equity Committee's prosecution of its claims, the Court finds that the prosecution of these claims too would be in the best interests of the estate.
Conclusion
It is plain that on Housecraft and STN motions the Committees do not have to show a likelihood of success on the merits. Rather, those proposing to pursue litigation on behalf of an estate must give the Court comfort that their litigation will be a sensible expenditure of estate resources. That means, as a practical matter, providing the Court with a predicate for concluding that the claims will, if proven, provide a basis for recovery, and that the proposed litigation will not be a hopeless fling. It also means, as a practical matter, that the prospective rewards can reasonably be expected to be commensurate with the litigation's foreseeable cost. But no more than that is required, and the Court must be mindful of the purposes for its inquiry. It is not for the protection of defendants sued or to be sued by a committee on behalf of an estate, whose defenses can be fully and fairly considered in the plenary litigation to be prosecuted just as they would if the defendants had been sued by a debtor (or a nondebtor) directly. Rather, the purpose of the bankruptcy court's gatekeeper role is to protect the estate, to ensure that the litigation reasonably can be expected to be a sensible expenditure of estate resources, and will not impair reorganization.
The Committees have provided this Court with more than sufficient comfort that their litigation is a sensible endeavor. Indeed, they have satisfied the Court not only that this litigation is consistent with maximizing the value of the estate, but that it is necessary to achieve that goal. Accordingly, both Committees are granted leave to assert their respective claims on behalf of the Debtors' estates. This determination is, of course, without prejudice to any of the Defendants' rights on any issues in the litigation so brought.
SO ORDERED.
NOTES
[1] See Glinka v. Murad (In re Housecraft Industries USA, Inc.), 310 F.3d 64 (2d Cir.2002) ("Housecraft"). Housecraft, the third of the Second Circuit's trilogy of standing-to-sue cases following Unsecured Creditors Committee of Debtor STN Enterprises, Inc. v. Noyes (In re STN Enterprises), 779 F.2d 901 (2d Cir.1985) ("STN") and Commodore International Ltd. v. Gould (In re Commodore International Ltd.), 262 F.3d 96 (2d Cir.2001) ("Commodore ") permits the bankruptcy court to confer standing upon a committee to sue as a co-plaintiff with the debtor on behalf of the estate when the requirements for conferring such standing, discussed below, have been satisfied.
The Court sometimes refers to STN, Commodore and Housecraft as the "STN Trilogy."
[2] See STN, supra n. 1. As described more fully below, STN permits the bankruptcy court to confer standing upon a committee to sue on behalf of the estate when the debtor has failed to bring the action itself, when the requirements for conferring such standing, discussed below, have been satisfied. When the debtor does not itself sue, but consents to a suit on behalf of the estate by a committee or another, that gives rise to a Commodore situation, discussed below. In this case, the Debtors did not oppose the Equity Committee's assertion of the claims it wishes to bring, but neither did they expressly consent to it. While it might be that a non-opposition by a debtor should more appropriately be considered as a consent (and hence trigger a Commodore, rather than an STN, situation), the Equity Committee has treated its motion as an STN motion, and this Court will too.
[3] In that connection, the Creditors' Committee argues that Defendants who are not creditors of the estates cannot contest the Creditors' Committee's standing. See Creditors Committee's Memorandum of Law in Opposition to Objections to Standing and Motions to Dismiss at 92 n. 75 ("Cred.Comm.Response"). By reason of the underlying purposes of a Housecraft order, the Creditors' Committee is correct in this regard; the interests to be protected by an STN, Commodore, or Housecraft order are those of the estate and its stakeholders, and not the interests (usually diametrically opposite) of a defendant protecting itself from claims by that estate. But here the point is academic, since so many of the Defendants making the same points on this Housecraft motion were lenders to the Debtors, and are still creditors. Thus, though their interests are antithetical to the interests of the estate and its large number of non-Defendant creditors and equity holders, the creditor-Defendants do have the requisite standing to be heard.
With that said, the Court necessarily must take the Defendants' protestations as to what is in the interests of the estate with a grain of salt.
[4] The Court has considered the arguments on the 12(b)(6) motions, and its exercise of its discretion on this motion has been informed by its views at this time to the claims that will and will not survive those motions, but considered it appropriate to issue its determinations here, which are considerably easier, first.
[5] See n. 54 infra.
[6] Those Defendants contend that many of the matters of which the Committees complain had indeed been publicly disclosed. The Committees dispute that, and argue that the public markets' response to the disclosures in the period March through May 2002 is strong evidence that the matters said to have been disclosed were in fact not disclosed, or were inadequately disclosed. The Court does not now make any findings as to this seemingly significant disputed issue of fact, other than to note that the Committees' contentions in this regard have, at the least, reasonable basis.
[7] The Defendants contend that Adelphia's independent directors did know of the uses to which the Rigases planned to utilize the co-borrowing facilities, and of other self-dealing on the part of the Rigases. The Committees dispute this, and once more the Court does not make findings on this motion as to the disputed facts in this regard. At this juncture, the Court can find that each side has evidence that could reasonably be argued to support its position (although the evidence now available is probably much less than all of the relevant evidence that ultimately will be adduced), but the Court cannot make factual findings beyond that.
[8] Cred. Comm. Response at 5.
[9] Id. at 5-6.
[10] Id. at 6.
[11] Id.
[12] See, e.g., Cred. Comm. Response Exh. 67 at 1; Cred. Comm. Response Exh. 69 (filed under seal).
[13] The stipulation provided, in relevant part:
7. The Debtors and the Equity Committee consent to the relief requested in the Committee's Standing Motion.
8. To the extent the Committee's Standing Motion is granted, the Debtors shall remain a nominal party to the Adversary Proceeding, but shall not be bound by any of the allegations in the Complaint, and the Debtors shall have the right to oppose any proposed amendments to the Complaint, including any amendments to add any additional Lender Claims not included within the Complaint annexed hereto or to eliminate any of the Lender Claims currently identified therein, by seeking appropriate relief through this Court.
9. To the extent the Committee's Standing Motion is granted, the Debtors and the Creditors' Committee consent to the relief requested in the Equity Committee's Intervention Motion and agree that the Equity Committee, as intervenor, shall not be bound by any of the allegations in the Complaint.
10. Notwithstanding anything set forth herein, to the extent the Committee's Standing Motion is granted, (a) the Debtors shall retain the right to compromise and to settle the Lender Claims, whether pursuant to a plan of reorganization or otherwise; and (b) parties-in-interest shall retain the right to oppose such settlement(s), in each case as if this Stipulation and Order never existed and the Debtors had retained exclusive control over the Lender Claims.
[14] See STN, 779 F.2d at 904 ("We agree . . . that 11 U.S.C. §§ 1103(c)(5) and 1109(b) imply a qualified right for creditors' committees to initiate suit with the approval of the bankruptcy court."). The Third Circuit, sitting en banc, has held likewise, finding the implied authority under those sections and also section 503(b)(3)(b), which allows for the priority payment of the expenses of "a creditor that recovers, after the court's approval, for the benefit of the estate any property transferred or concealed by the debtor." See Official Committee of Unsecured Creditors of Cybergenics Corp. v. Chinery (In re Cybergenics Corp.), 330 F.3d 548, 560-566 (3d Cir.2003) (en banc) ("Cybergenics"), cert. dismissed, 540 U.S. 1002, 124 S.Ct. 530, 157 L.Ed.2d 407 (2003).
[15] See Housecraft, 310 F.3d at 71 n. 7 ("Numerous courts have granted individual creditors standing to sue in the stead of a trustee or debtor-in-possession.").
[16] See, e.g., STN; Commodore; Housecraft; Cybergenics; Louisiana World Exposition v. Federal Insurance Co., 858 F.2d 233 (5th Cir.1988), reh'g denied, 864 F.2d 1147 (5th Cir.1989); Canadian Pacific Forest Products Ltd. v. J.D. Irving, Ltd. (In re The Gibson Group, Inc.), 66 F.3d 1436 (6th Cir.1995); Fogel v. Zell, 221 F.3d 955 (7th Cir.2000); Avalanche Maritime, Ltd. v. Parekh (In re Parmetex, Inc.), 199 F.3d 1029 (9th Cir.1999); Jefferson County Board of County Commissioners v. Voinovich (In re The V. Companies), 292 B.R. 290 (6th Cir. BAP 2003); ReGen Capital III, Inc. v. Official Committee of Unsecured Creditors (In re Trism, Inc.), 282 B.R. 662 (8th Cir. BAP 2002); Liberty Mutual Insurance Co. v. Official Unsecured Creditors' Committee of Spaulding Composites Co. (In re Spaulding Composites Co., Inc.), 207 B.R. 899 (9th Cir. BAP 1997) ("Spaulding Composites"); but see United Phosphorus, Ltd. v. Fox (In re Fox), 305 B.R. 912 (10th Cir. BAP 2004) (with the exception only of the panel decision that was vacated by the Third Circuit in Cybergenics after hearing the matter en banc, the only appellate decision holding to the contrary).
[17] See Cybergenics, 330 F.3d at 576-579 (considering, and ultimately rejecting, arguments that courts should instead consider possible substitutes for derivative standing for creditors' committees).
[18] 779 F.2d at 904.
[19] The "unjustifiable" failure of a debtor to bring the suit itself does not require an improper motive for the failure. Rather, a debtor's failure to bring a claim is deemed to be unjustifiable when the committee has presented a colorable claim that on appropriate proof would support recovery, and the action is likely to benefit the reorganization estate. See STN, 779 F.2d at 905; Official Committee of Unsecured Creditors v. Morgan Stanley & Co., Inc. (In re Sunbeam Corp.), 284 B.R. 355, 374 (Bankr.S.D.N.Y.2002), appeal dismissed, 287 B.R. 861 (S.D.N.Y.2003).
[20] See STN, 779 F.2d at 905.
[21] Id. at 905-906.
[22] 262 F.3d at 100.
[23] See id.
[24] Housecraft, 310 F.3d at 71 (citing Commodore, 262 F.3d at 100).
[25] The Court says "at the least" because, as in other cases where caselaw has laid down factors for courts to consider in exercising their judgment or discretion, the Court does not regard these factors as necessarily exclusive, and is hardly in a position to rule out the possibility that other factors might be relevant in a given case.
[26] See Spaulding Composites, supra n. 16, 207 B.R. at 904.
[27] See Bank of America and Bank of Nova Scotia's Joint Opposition to Creditor's Committee Motion to Prosecute Claims at 7-15; Objection of JPMorgan to Motion of Official Committee of Unsecured Creditors for Order Approving Stipulation Among Debtors, Creditors' Committee and Equity Committee, Authorizing Creditors' Committee to Prosecute Claims and Causes of Action Against Pre-Petition Agents and Secured Lenders and Granting Equity Committee Right to Intervene at 21; Objection by Defendant Wachovia Bank, National Association to the Motion of the Official Committee of Unsecured Creditors for Standing to File Adversary Complaint at 20.
[28] STN calls for the Court to examine whether the claims are "colorable." STN, 779 F.2d at 905. Commodore and Housecraft do not, by express language, impose that requirement, but as noted below, a need for a somewhat similar inquiry must be implied.
[29] See STN, 779 F.2d at 905 ("We do not mean to suggest that the court need undertake a mini-trial.").
[30] See Cred. Comm. Response at 93-95.
[31] See id. at 94-95.
[32] 779 F.2d at 905.
[33] See Official Committee of Unsecured Creditors of the Debtors v. Austin Financial Services, Inc. (In re KDI Holdings, Inc.), 277 B.R. 493, 507-508 (Bankr.S.D.N.Y.1999) (Gonzalez, J.) ("KDI"); Official Committee of Unsecured Creditors of America's Hobby Center, Inc. v. Hudson United Bank (In re America's Hobby Center, Inc.), 223 B.R. 275, 282 (Bankr.S.D.N.Y.1998) (Brozman, C.J.) ("America's Hobby Center").
[34] See In re iPCS, Inc., 297 B.R. 283, 291 (Bankr.N.D.Ga.2003) (Drake, J.) ("iPCS"); In re Valley Park, Inc., 217 B.R. 864, 869 & n. 4 (Bankr.D.Mont.1998) (Peterson, C.J.); In re Colfor, Inc., 1998 WL 70718, *2 (Bankr.N.D.Ohio 1998) (Williams, J.) ("Colfor").
[35] 779 F.2d at 905 (emphasis added).
[36] America's Hobby Center, 223 B.R. at 288.
[37] KDI, 277 B.R. at 508 (quoting America's Hobby Center, 223 B.R. at 282).
[38] See American Heritage College Dictionary (4th Ed.2004) (one of whose definitions, the one relevant here, is "seemingly true or genuine; plausible"). "Plausible," in turn, is defined as "seemingly or apparently valid, likely, or acceptable; credible." Id.
[39] 1998 WL 70718, at *2 (citations omitted). In a different procedural context, but one also requiring consideration of whether claims were "colorable," the court noted that "[a]colorable claim (one seemingly valid and genuine) is not a difficult standard to meet." In re Midway Airlines, Inc., 167 B.R. 880, 884 (Bankr.N.D.Ill.1994).
[40] 297 B.R. at 291 (quoting America's Hobby Center, 223 B.R. at 282).
[41] For instance, the Court is not in a position now to find, if it ever will be, that the Committees' factual claims with respect to non-disclosure as to the co-borrowing facilities will lack merit. It appears to be true, as the Defendants argue, that the facilities that we now know to be the co-borrowing facilities were disclosed. It might even be that the underlying agreements (which would identify co-borrowers we now know to be Rigas Family Entities (as defined in Cred. Comm. Compl. ¶¶ 405-411)) were exhibits to Adelphia's SEC filings. But they were disclosed in a manner that, at least arguably, masked the fact that the Rigases and the Rigas Family Entities intended to, and did, draw down the vast majority of the loan funds for their own purposes without any benefit to Adelphia itself.
Disclosure that advised that "affiliates" would participate in the borrowing did not, in any way now known to this Court, reveal that the "affiliates" to which the disclosure was referring were Rigas Family Entities. Even assuming, as the Court does for the purposes of this analysis, that by reason of the way "affiliates" might be defined for purposes of the federal securities law disclosure, "affiliates" referred to the Rigases and Rigas Family Entities, the Committees are entitled to argue that such was, at most, a half-truth, and a materially misleading disclosure a contention that would seemingly be supported by the market's reaction when more facts became known. The Court does not now make factual findings or draw legal conclusions with respect to any of this, of course, but it can and does find that the Committees have, at the least, given the Court comfort that they may be able to make the showing they say they can make, and that contentions by the Defendants that the Court should find the Committees' claims unworthy of pursuit are unpersuasive.
[42] 944 F.2d 114 (2d Cir.1991) ("Wagoner").
[43] See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085 (2d Cir.1995) ("Hirsch"), aff'g Hirsch. v. Arthur Andersen & Co., 178 B.R. 40 (D.Conn.1994) (Cabranes, C.J.); Mediators, Inc. v. Manney (In re Mediators, Inc.), 105 F.3d 822 (2d Cir.1997) ("Mediators"); Wight v. Bankamerica Corp., 219 F.3d 79 (2d Cir.2000) ("Wight"); Breeden v. Kirkpatrick & Lockhart LLP (In re Bennett Funding Group, Inc.) 336 F.3d 94 (2d Cir.2003); CEPA Consulting Ltd. v. King Main Hurdman (In re Wedtech Securities Litigation) 138 B.R. 5 (S.D.N.Y.1992) (Sand, J.); Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 212 B.R. 34 (S.D.N.Y.1997) (Knapp, J. and Peck, M.J.), related subsequent proceeding reported at 994 F.Supp. 202 (S.D.N.Y.1998); Goldin v. Primavera Familienstiftung, TAG Associates, Ltd. (In re Granite Partners, L.P.), 194 B.R. 318 (Bankr.S.D.N.Y.1996) (Bernstein, J.); Giddens v. D.H. Blair & Co. (In re A.R. Baron & Co., Inc.), 280 B.R. 794 (Bankr.S.D.N.Y.2002) (Beatty, J.); Tese-Milner v. Beeler (In re Hampton Hotel Investors, L.P.), 289 B.R. 563 (Bankr.S.D.N.Y.2003) (Gerber, J.) ("Hampton Hotel"); Picard v. Taylor (In re Park South Securities, LLC), 326 B.R. 505 (Bankr.S.D.N.Y.2005) (Drain, J.); Official Committee of Unsecured Creditors of Grumman Olson Industries, Inc. v. McConnell (In re Grumman Olson Industries, Inc.), 329 B.R. 411 (Bankr.S.D.N.Y.2005) (Bernstein, C.J.) ("Grumman Olson").
[44] 267 F.3d 340 (3d Cir.2001) ("Lafferty").
[45] The Wagoner Rule, which has two prongs, generally provides (1) that a bankruptcy trustee (or other estate representative) steps into the shoes of the debtor, with the ability to assert claims to the extent (but only the extent) the debtor could, and (2) that (subject to exceptions that may be applicable here) misconduct by a debtor's personnel is imputed to the trustee; when that is the case, a trustee lacks standing to assert claims on behalf of the estate against a third party. See Hampton Hotel, 289 B.R. at 567, 573-576 (explaining and applying the Wagoner Rule to a case with several similarities to this case, but also some significant differences).
[46] See Hirsch, 72 F.3d at 1093 ("`Under the Bankruptcy Code, the bankruptcy trustee may bring claims founded, inter alia, on the rights of the debtor and on certain rights of the debtor's creditors. . . . Whether the rights belong to the debtor or the individual creditors is a question of state law.'") (emphasis added) (quoting St. Paul Fire and Marine Insurance Co. v. PepsiCo, Inc., 884 F.2d 688 (2d Cir.1989)); Mediators, 105 F.3d at 825 ("In a bankruptcy proceeding, state law determines whether a right to sue belongs to the debtor or to the individual creditors.") (emphasis added) (citation omitted); Wight, 219 F.3d at 86 ("In a bankruptcy proceeding, state law here the law of New York `determines whether a right to sue belongs to the debtor or to the individual creditors.'") (emphasis added) (citation omitted); Bondi v. Bank of America Corp. (In re Parmalat Securities Litigation), 383 F.Supp.2d 587, 595 & nn. 46-47, 2005 WL 1923839, *5 & nn. 46-47 (S.D.N.Y.2005) (Kaplan, J.) ("Parmalat") ("[Wagoner], to whatever extent it may be relevant to the in pari delicto issue, is an application of New York law. . . . The question whether the Parmalat Debtors are chargeable with the fraud allegedly perpetrated by the companies' former management, and thus whether [their representative] is subject to a defense of in pari delicto, is governed by the law of North Carolina. Wagoner simply is not controlling here.").
[47] See, e.g., Hampton Hotel, 289 B.R. at 567.
[48] Strictly speaking, this is an exception to the "sole actor" exception to the "adverse interest" exception to the in pari delicto doctrine. It is unnecessary, for the purposes of the discussion of this motion, to become immersed in that level of detail here.
[49] See Lafferty, 267 F.3d at 355-357 (regarding section 541 analysis as depending on the nature of the debtor's interests "as of the commencement of the case").
[50] Compare Lafferty, 267 F.3d at 354-360 (decision of two judge majority finding in pari delicto applicable to bar suit by a creditors' committee) with Lafferty, 267 F.3d at 360-363 (Cowen, J., dissenting) (finding in pari delicto no bar to the creditors' committees' suit, and reasoning, inter alia, that the in pari delicto issue is in truth not one of standing, but rather the applicability of an affirmative defense); Waslow v. Grant Thornton LLP (In re Jack Greenberg, Inc.), 240 B.R. 486 (Bankr.E.D.Pa.1999) (Sigmund, J.) ("Jack Greenberg") (rejecting in pari delicto defense in action brought against accountants by chapter 7 trustee); and, arguably most importantly, the decision of the Pennsylvania Supreme Court in Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 555, 244 A.2d 10, 14 (Pa.1968) ("Universal Builders") (holding that in pari delicto doctrine should be applied cautiously and should not be applied if its application would produce an inequitable result, and that denying a plaintiff bankruptcy trustee recovery in that case would result in the enrichment of the defendant "at the expense of innocent creditors of the bankrupt Universal"). The Creditors' Committee also notes that the effort to invoke the in pari delicto defense on a motion to dismiss was rejected, at least initially, in the Pennsylvania state court action brought by Adelphia against Deloitte & Touche, Adelphia's former auditor.
Though this Court does not know why, the Lafferty majority failed to address the Pennsylvania Supreme Court's decision in Universal Builders, which seemingly would have been highly relevant. Jack Greenberg, which this Court regards as more thoroughly reasoned than the decision of the Lafferty majority, considered Universal Builders at length, see 240 B.R. at 504-505, noting the obvious implications of that Pennsylvania Supreme Court decision on a matter of this nature. Not being bound by the decision of the Lafferty majority on a matter of Pennsylvania state law (or even a matter of federal law), this Court believes that it should follow the Pennsylvania Supreme Court's decision in Universal Builders, and Judge Sigmund's decision in Jack Greenberg.
[51] It is important to note, as Chief Judge Bernstein of this Court has observed, that the Wagoner Rule (at least as discussed by many litigants and some courts) is one of standing, and in pari delicto is not one of standing but rather an equitable defense applicable in some cases where the plaintiff has standing. See Grumman Olson, 329 B.R. at 424 n. 5, 2005 WL 2044907, at *5 n. 5. The two separate concepts should not be confused.
[52] See, e.g., Parmalat (denying 12(b)(6) motion seeking to invoke in pari delicto as defense to claims by an estate for aiding and abetting insider's breach of fiduciary duty):
By any standard, theft from a corporation by insiders is self dealing by the insiders and not in any sense in the interest of the entity. The insiders' actions and knowledge in engaging in such conduct therefore cannot be imputed to the company. Accordingly, to the extent that the complaint alleges that [defendant] BoA assisted the insiders in stealing from Parmalat, in pari delicto does not apply.
383 F.Supp.2d at 599, 2005 WL 1923839, at *8.
[53] See, e.g., Wedtech Corp. v. KMG Main Hurdman (In re Wedtech Corp.), 81 B.R. 240, 242 (S.D.N.Y.1987) (Sand, J.) (denying motion to dismiss, in light of factual issues as to applicability of "adverse interest" exception).
[54] See STN, 779 F.2d at 905; America's Hobby Center, 223 B.R. at 282; KDI, 277 B.R. at 508; and iPCS, 297 B.R. at 291 (in each case looking to whether the allegations, if proven, would support recovery).
[55] The third Spaulding Composites factor, whether the litigation would maximize the value of the debtor's estates a variant of which, in this Court's view, is the factor of the greatest importance under any Circuit's criteria for examining the issues overlaps with traditional Second Circuit criteria and requires consideration under something of a totality of the circumstances analysis. Accordingly, the Court has saved it for last.
[56] The Court says "consistent with" the maximization because of the limits on the extent of factfinding on motions of this character, and because in many cases (as here) the bankruptcy court will be hearing the plenary litigation and will not want to prematurely judge the merits. Use of a "consistent with" maximization standard ensures that claims worthy of consideration are prosecuted without enlisting the Court as an ally of the estate in the value maximization effort.
[57] Cred. Comm. Response at 98.
[58] See Housecraft, 310 F.3d at 71 ("[W]hile the Agreement [between debtor and secured creditor providing for a joint lawsuit on behalf of the estate] did not guarantee the estate any recovery, the estate could not have recovered anything . . . in its absence.") (emphasis added).
[59] See DIP Financing Order ¶ 15. That paragraph, which runs nearly two pages and is too lengthy to quote in full, provided in substance, as relevant here, for the Debtors' stipulations as to their prepetition secured lenders' rights, and for those stipulations to be binding against the entirety of the estate unless litigation (either to challenge liens or to assert any other claims or causes of action) was commenced against the prepetition secured lenders by prescribed dates. It also expressly acknowledged the right of any official committee to request standing to bring claims belonging to the Debtors' estates.
[60] See S.D.N.Y. Gen. Order No. M-274, "Guidelines for Financing Requests," "Extraordinary Provisions," ¶ 3:
The Court will not consider as extraordinary the debtor's stipulation as to validity, perfection, enforceability, priority and non-avoidability of a prepetition lender's claim and liens, and the lack of any defense thereto, provided that:
(a) the Official Committee of Unsecured Creditors (the "Committee"), appointed under section 1102 of the Bankruptcy Code, has a minimum of 60 days (or such longer period as the Committee may obtain for cause shown before the expiration of such period) from the date of the order approving the appointment of counsel for the Committee to investigate the facts and bring any appropriate proceedings as representative of the estate. . . .
[61] The Creditors' Committee made a demand on the Debtors to bring the additional claims, but the Debtors refused to do so. The Equity Committee states, however (and on this record it appears to be undisputed), that the Debtors have never indicated that they believe the Equity Committee's additional claims to be invalid. As noted, the Debtors neither support nor oppose the Equity Committee's request for standing to bring the additional claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/6826253/ | OPINION
HORN, Judge.
INTRODUCTION
Jo-Mar, a corporation, with its principal place of business in Suffolk, Virginia, filed a government contract claim in the United States Claims Court against the United States. In an unusually crafted Complaint, plaintiff appears to allege that as a result of government-induced changes to the contract requirements, delays, additional work and harassment, it is entitled to an equitable adjustment of the contract price.
In response, the government filed a Motion to Dismiss the case for lack of subject matter jurisdiction under Rule 12(b)(1) of the Rules of the United States Claims Court (RUSCC). Arguing in the alternative, the government contends that: 1) plaintiff made a binding election to proceed before the Armed Services Board of Contract Appeals, as a result of which the Claims Court lacks subject matter jurisdiction, in accordance with 41 U.S.C. § 609(a)(1) (Supp. I 1983); or 2) a contract to repair a ship is a maritime contract, therefore, pursuant to 41 U.S.C. § 603 (1982), the action is one in admiralty, for which the United States District Courts are solely vested with original, subject-matter jurisdiction under 46 U.S.C. § 742 (1982).
For the reasons discussed below, based on a review of the papers submitted to the court, and after hearing the presentations made at oral argument, Defendant’s Motion to Dismiss the Complaint is, hereby, DENIED. The court, however, will direct the Clerk of the United States Claims Court to transfer this case to the United States District Court for the Eastern District of Virginia.
BACKGROUND
Although the Complaint filed in this court is not specific as to the exact date or terms of the controlling contract, it would appear, from papers submitted to the court by the parties, that some time prior to June 1984, Jo-Mar, a corporation with its principle place of business in Suffolk, Virginia, entered into a repair contract with the Military Sealift Command (MSC), Department *604of the Navy. Under the contract, work on the U.S.N.S. SIRIUS, a Navy combat stores ship, was undertaken. During the pendancy of the repairs, the SIRIUS was docked in Norfolk, Virginia.
Upon completion of the project at issue in the current case, Jo-Mar appears to have filed a claim with the contracting officer (CO), pursuant to 41 U.S.C. § 605 (1982), in which it contended that it was entitled to an equitable adjustment due to government-induced delays, changes to the contract requirements, additional work and harrassment. In a letter, issued April 16, 1986, included in the Appendix to Defendant’s Motion to Dismiss,1 the CO denied the request for relief relating to the facts of the claim currently before this court.
On June 18, 1986, pursuant to 41 U.S.C. § 606 (1982), Jo-Mar filed a Complaint with the Armed Services Board of Contract Appeals (ASBCA), contesting the April 16, 1986 decision by the CO, but from which no Notice of Appeal had been filed with the ASBCA. Even though the text of the June 18,1986 Complaint refers to the same MSC contract and the same facts presently disputed in this court, the caption of the June 18 Complaint was identical to one the plaintiff had filed two days earlier on June 16, 1986, also with the ASBCA. The June 16 Complaint addressed a separate CO’s decision issued on December 15, 1985, concerning five contract disputes not related to the claim currently before this court, and regarding which Jo-Mar properly had filed a Notice of Appeal on December 15, 1985.2
Over the next few months, the ASBCA and both parties attempted to untangle the web of confusion spun by Jo-Mar’s two ASBCA filings. Particularly, the parties sought to clarify the inconsistency between the caption on the June 16, 1986 Complaint, filed with the ASBCA, which refers to the CO’s adverse ruling of December 5, 1985, and the new Complaint delivered to the ASBCA on June 18, 1986, which disputed the CO’s adverse ruling of April 16, 1986. Once counsel for the Navy realized that Jo-Mar’s second, June 18, 1986 filing was an attempt to appeal a CO’s ruling, unrelated to the one covered in the June 16, 1986 filing, counsel for the Navy contacted the Board. In a letter to plaintiff's counsel, dated November 13, 1986, the Board indicated that Jo-Mar had failed to file a timely Notice of Appeal with the ASBCA to challenge the CO’s April 16, 1986 decision, in violation of ASBCA Rule 2, 32 C.F.R. 1-39 vol. Ill app. A at 414 (1984). Since Jo-Mar had not complied with the ASBCA’s published procedures, the Board indicated its intention that the June 18, 1986 Complaint would be “marked for identification and constructively removed from the appeal records.”
On February 11, 1987, Jo-Mar filed a Complaint in this court. The Complaint in this court referred to the same facts as included in the case filed with the ASBCA on June 18, 1986, appealing the April 16, 1986 CO’s decision, and which the ASBCA had removed from its appeal records. In response to the Complaint, the defendant filed the Motion to Dismiss, which is discussed and decided herein.
DISCUSSION
Under the Contract Disputes Act of 1978, Pub.L. No. 95-563, 92 Stat 2383 (codified as amended at 41 U.S.C. §§ 601-613 (1982)), the contractor has a choice of jurisdictions within which to challenge a CO’s decision. A contractor either may file an appeal with the proper board of contract appeals, 41 U.S.C. § 606 (1982), or with the United States Claims Court, 41 U.S.C. § 609(a)(1) (Supp. I 1983). Recognizing the need to confront the burden of increased litigation on adjudicative bodies and on litigants, the courts have developed a body of jurisprudence known as the “Election Doctrine.” National Neighbors, Inc. v. United States, 839 F.2d 1539, 1541 (Fed.Cir.1988), (citing *605Sante Fe Eng’rs, Inc. v. United States, 230 Ct.Cl. 512, 677 F.2d 876 (1982) and Tuttle/White Constructors, Inc. v. United States, 228 Ct.Cl. 354, 656 F.2d 644 (1981)). The doctrine forces contractors to choose between the jurisdictions available to litigants in Sections 606 and 609 of Title 41 and prohibits contractors from pursuing their claims in multiple fora at one time. Id. at 1542.
Since the enactment of the Contract Disputes Act, the courts have read that Act to provide the contractor with an “either-or alternative, and not with dual avenues of appeal.” Santa Fe Eng’rs, 230 Ct.Cl. at 516, 677 F.2d 876; see also, National Neighbors, 839 F.2d at 1541-42. In order to determine whether a contractor has made an election, the courts have traditionally focused on whether the contractor made a “conscious and unwavering election to proceed” in one forum over another. Tuttle/White Constructors, Inc., 228 Ct.Cl. at 359, 656 F.2d 644.
In National Neighbors, when discussing the Election Doctrine, the United States Court of Appeals for the Federal Circuit adopted the United States Claims Court holding in Olsberg Excavating Co. v. United States, 3 Cl.Ct. 249 (1983). As in the present case, Olsberg Excavating addresses the implications of the Election Doctrine when a plaintiff fails to file a timely Notice of Appeal with a board of contract appeals. In Olsberg Excavating, the United States Claims Court held that a contractor’s untimely filing of an appeal with the Department of Transportation Board of Contract Appeals did not constitute a binding election. Once plaintiff failed to file its appeal within ninety days of the CO’s ruling, the Olsberg Excavating Court noted: “there was no right of election to proceed administratively, no valid means of invoking the jurisdiction of the board, no real ‘choice of forums’_” Id. at 252.
Because the contractor in Olsberg Excavating had failed to perfect its claim before the appropriate board of contract appeals, the plaintiff’s only choices were to bring a direct access action in the United States Claims Court or to abandon the claim. Id. The Olsberg Excavating Court refused to “equate plaintiff’s untimely and misguided ‘appeal’ with a forfeiture of the right timely to bring a direct access action.” Id. In Cosmic Constr. Co. v. United States, 5 Cl.Ct. 237 (1984), the United States Claims Court reaffirmed the Olsberg Excavating principle by concluding that an ASBCA’s dismissal with prejudice for failure to file an appeal in a timely fashion did not constitute a binding election. Id. at 240.
In light of Olsberg Excavating and Cosmic Construction, the issue is not solely whether the contractor has attempted to avail itself of one forum over another. The question includes consideration of whether the forum in which an election or attempted election has been made, is able to exercise jurisdiction at the time of the appeal. Thus, the contractor commits itself to a binding election only when: 1) it has sought to avail itself of one forum over another; and 2) that forum has the ability to exercise jurisdiction at the time the election is attempted. See National Neighbors, 839 F.2d at 1542.
The United States Supreme Court has long held that “limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 16 Ed.2d 306 (1957) (citing United States v. Sherwood, 312 U.S. 584, 590-91, 61 S.Ct. 767, 771-72, 85 L.Ed. 1058 (1941)). Whereas the court in Soriano was interpreting the Tucker Act, in the instant case, this court is faced with interpreting the Contract Disputes Act in which Congress has waived the Federal Government’s sovereign immunity for certain types of contract disputes. Section 606 of the codified Contract Disputes Act states that a contractor, wishing to appeal a contracting officer’s decision, must file with the ASBCA a Notice of Appeal, with an agency board of contract appeals, within ninety days after receipt of the contracting officer’s decision. 41 U.S.C. § 606 (1982). Timely filing of an appeal is considered a condition to the government’s waiver of immunity. “The ninety day deadline is *606thus part of a statute waiving sovereign immunity, which must be strictly construed.” Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390 (Fed.Cir.1982).
The ASBCA has promulgated: rules which govern appeals to be brought before it. 32 C.F.R. 1-39, vol. Ill app. A (1984). These procedural rules were published pursuant to the Board’s powers derived from the Contract Disputes Act. Because that Act contains the government’s waiver of immunity from suit, which according to the Supreme Court must be strictly construed, see Soriano, 352 U.S. at 276, 77 S.Ct. at 273, the procedural requirements of all rules promulgated thereunder should be strictly construed. Rule 1 of the ASBCA rules, 32 C.F.R. 1-39, vol. Ill app. A at 413 (1984), which governs the procedure for appealing a ruling by a CO to the Board, states:
(a) Notice of an appeal shall be in writing and mailed or otherwise furnished to the Board within 90 days from the date of receipt of a contracting officer’s decision. A copy thereof shall be furnished to the contracting officer from whose decision the appeal is taken.
Id. To satisfy the Supreme Court’s holding in Soriano, Rule 1, which requires the filing of a Notice of Appeal, and describes the proper procedures to prosecute an appeal, must be strictly construed. In accordance with Rule 1, a claimant before the ASBCA, therefore, is required to file a timely Notice of Appeal. The filing of a Complaint with the ASBCA, absent the filing of a Notice of Appeal, is insufficient. Avoidance of the filing of a Notice of Appeal, in fact, could frustrate the purpose of Rule 1, which requires not only the filing of a timely Notice of Appeal with the Board, but also provides that a copy of the Notice of Appeal must be furnished to the con-' tracting officer from whose ruling the appeal is being taken.
The ASBCA recorder chose to honor only those appeals included in the June 16, 1986 Complaint, which had been properly filed. Therefore, on November 13, 1986, the Board removed the June 18, 1986 Complaint (which raised the issues included in the claim currently before this court) from the ASBCA docket, because no claim had been perfected in the ASBCA.3 Under the test set out in National Neighbors, 839 F.2d at 1542, the ASBCA could not exercise jurisdiction of the case because, Jo-Mar had not complied with the applicable Rules of the Board.
Both parties agree that Jo-Mar failed to file a Notice of Appeal and filed only a Complaint with the ASBCA to contest the April 16, 1986, CO’s decision. In furtherance of its argument that a binding election of forum had been made by the plaintiff, the government argues, however, that Jo-Mar’s filing of the Complaint in the ASBCA actually operated as a constructive Notice of Appeal with the ASBCA. This contention is incorrect, given the strict way in which the Contract Disputes Act and the ASBCA Rules have been interpreted.
ASBCA Rule 2 explicitly states that:
[a] notice of appeal should indicate that an appeal is being taken and should identify the contract (by number), the department and/or agency involved in the dispute, the decision from which the appeal is taken, and the amount in dispute, if known. The notice of appeal should be signed personally by the appellant (the contractor taking the appeal), or by the appellant’s duly authorized representative or attorney. The complaint referred to in Rule 6 may be filed with the notice of appeal, or the appellant may designate, the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.
32 C.F.R. 1-39, vol. Ill app. A at 414 (1984). Since the rule specifically contemplates the possibility of a notice serving as a Complaint, it would appear that if the ASBCA had intended a situation in which the Com*607plaint could serve as notice, it would have so stated.
A contract board of appeals has, and must have, discretionary power to manage its docket. Metadure Corp. v. United States, 6 Cl.Ct. 61, 66-67 (1984). Under the facts present in the case before this court, the ASBCA did not abuse its discretion when the Recorder dismissed the June 18, 1986 Complaint and did not exercise jurisdiction over Jo-Mar’s Complaint. The dismissal of the June 18,1986 Complaint by the ASBCA precludes the application of the Election Doctrine to this case because the forum in which Jo-Mar attempted to elect to prosecute its claim did not, and could not exercise, jurisdiction of the appeal, due to Jo-Mar’s failure to file a timely Notice of Appeal.
The court recognizes that it is the lack of attention to detail displayed by Jo-Mar’s counsel in filing its complaints before the ASBCA which has afforded plaintiff the opportunity to try to bring Jo-Mar’s claim before this forum. This pattern is disturbing because it shows, at best, an indifference towards conserving judicial resources. What makes the situation worse, however, is that even when plaintiff’s counsel chose to file in this court, he failed to recognize the maritime nature of the dispute at bar, given that the underlying contract in question is one for repairs to a ship.
The federal courts have traditionally held that contracts contemplating repairs on ships are maritime contracts. Kossick v. United Fruit Company, 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 (1961) (citing Endner v. Greco, 3 F. 411 (D.C.N.Y.1880)); The Robert W. Parsons, 191 U.S. 17, 33-34, 24 S.Ct. 8, 18-19, 48 L.Ed. 73 (1903). Such contracts, for repairs on ships are governed by the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 (1982), a body of law judicially entrusted to the United States District Courts. United States v. United Continental Tuna Corp., 425 U.S. 164, 172, 96 S.Ct. 1319, 1324, 47 L.Ed.2d 653 (1961); Whitey’s Welding & Fabrication v. United States, 5 Cl.Ct. 284, 285-87 (1984).
Section 609(a)(1) of the codified Contract Disputes Act, 41 U.S.C. § 609(a)(1) (Supp. I 1983), grants the United States Claims Court appellate jurisdiction over a contracting officer’s decision. The Act, however, suggests maritime contracts should be excluded from the court’s jurisdiction. In the case of maritime contracts, Section 603 of the Act states that:
[ajppeals under paragraph (g) of section 607 [Review of Agency Board of Contracts Appeals] and suits under section 609 of this title [Judicial Review of Board Decisions] arising out of maritime contracts, shall be governed by chapter 20 or 22 of Title 46 [The Suits In Admiralty Act or The Public Vessels Act] as applicable, to the extent that those chapters are not inconsistent with this chapter.
41 U.S.C. § 603 (1982). Certainly, the language in Section 603 of the Contract Disputes Act is not entirely clear when it provides that “maritime contracts, shall be governed by chapter 20 or 22 of Title 46 as applicable, to the extent that those chapters are not inconsistent with this chapter.” Id. (emphasis added).4
The intent of the Congress not to disrupt the United States District Court’s traditional jurisdiction over maritime contracts is most clearly articulated, however, in the legislative history to the Contract Disputes Act. The United States House of Representatives, when enacting the original bill which ultimately gave rise to Section 603, specifically included language to “clarify the fact that the admiralty jurisdiction of the district courts is not changed by the provisions of the bill.” H.R.Rpt. 1556, 95th Cong., 2d Sess., 4 (1978). See generally Whitey’s Welding & Fabrication v. United States, 5 Cl.Ct. 284 (1984) (which dis*608cusses the impact of the legislative history of the Contract Disputes Act on maritime contract disputes).
The United States Senate, as well, addressed the issue. When its version of the bill, S. 3178, 95th Cong., 2d Sess. § 3 (1978), reached the floor, the Senate chose to follow the same approach as the House so that “the current jurisdiction for Maritime Contract claims is to be maintained and not changed ...” Compare 124 Cong. Rec. 36,267 (1978) (discussing amendments to S. 3178) with H.R. 11002, 95th Cong., 2nd Sess. § 10 (1978). See also Whitey’s Welding & Fabrication, 5 Cl.Ct. at 287.
Prior decisions of the United States Claims Court also have held that contract disputes involving maritime contracts should be referred to the appropriate United States District Court. Boston Shipyard Corp. v. United States, 9 Cl.Ct. 450 (1986) and Whitey’s Welding & Fabrication v. United States, 5 Cl.Ct. 284 (1984).
Although this court shares expertise with the District Courts regarding the aju-dication of contract disputes involving the United States, it is clear that only the District Courts have unique expertise and experience regarding suits in admiralty. As indicated by the Supreme Court in Amell v. United States, 384 U.S. 158, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1966): “As in other jurisdictional questions involving intersecting statutes, there is no positive answer.” Amell, 384 U.S. at 166, 86 S.Ct. at 1389.5
Given Section 603 of the Contract Disputes Act, 41 U.S.C. § 603 (1982), and the legislative history to that section, however, this court is unwilling to assume jurisdiction of the case. Moreover, in light of the prior decisions of the United States Claims Court, in similar fact situations and discussed above, the court’s conclusion that this case should be considered a maritime case, best handled by the United States District Courts, should come as no surprise to the plaintiff, Jo-Mar.
CONCLUSION
Defendant's Motion to Dismiss is hereby, DENIED. Because the plaintiff never properly filed a Notice of Appeal with the ASBCA and because plaintiffs filing of a Complaint with the ASBCA did not constitute constructive notice, the ASBCA never had, and could not have asserted, jurisdiction over the case. Therefore, the plaintiff did not make a valid election under the Election Doctrine and did not deprive itself of the opportunity to file an action in this court. Nonetheless, given that this claim is in the nature of a contract dispute regarding repairs to a ship, plaintiffs claim constitutes a maritime, contract dispute. As a result, the action should be considered one in admiralty and, therefore, should be transferred to the appropriate Federal District Court. 28 U.S.C. § 1631 (1982).
The only issue which remains for the court to decide is to which District Court this case should be transferred. The court first recognized the need to consider transferring the case to a United States District Court during oral argument. At that time, neither party was able to respond to the court’s inquiry as to which would be the proper District Court. As a result, the court ordered the parties to file, within five (5) days of oral argument, separate Status Reports, indicating to which District Court each believed transfer would be proper, in the event the court so ordered.
Defendant promptly filed, as required; however, the court never received a report from the plaintiff. The court, therefore, once again consulted with both parties in a joint telephone conference, held on October 12,1988. During the telephone conference, both parties agreed on the United States District Court for the Eastern District of Virginia as the appropriate District Court.
In choosing the Eastern District of Virginia as the proper forum, the court notes that Jo-Mar’s permanent place of business is located in Suffolk, Virginia, and that when the repairs to the U.S. Navy Ship *609SIRIUS were performed, it was located in Norfolk, Virginia. See 46 U.S.C.App. § 742 (1982). The court, therefore, ORDERS the case transferred to The United States District Court for the Eastern District of Virginia.
For the foregoing reasons, the Defendant’s Motion to Dismiss is DENIED. The Clerk of the Court is directed to enter judgment in accordance with the findings herein.
Costs are to be awarded to the defendant.
IT IS SO ORDERED.
. The plaintiff has filed no objection to contest the validity of the documents included in the Defendant’s Appendix to its Motion to Dismiss, therefore, for the purposes of deciding the instant Motion to Dismiss, they are accepted by the court as accurate.
. The December 15, 1985 Notice of Appeal filed by plaintiffs counsel contained descriptive and procedural errors which ultimately led the ASBCA to withdraw two of the five appeals, included in that Notice of Appeal, from its docket.
. Although it is unclear why, when it removed the June 18, 1986 Complaint from the docket, the Recorder marked the June 18, 1986 Complaint for identification, the court believes that the Board acted in order to help clarify the confusion regarding the other Jo-Mar cases, properly filed with the Board.
. In Whitey’s Welding, the United States Claims Court recognized, that the language “to the extent that these Acts are not inconsistent with this Act” could suggest that when the Contract Disputes Act and the Suits In Admiralty Act are in conflict the former should control. The Whitey Welding court, however, suggested an answer to its own question by stating that the language in question was intended to resolve only substantive inconsistencies and not jurisdictional ones. Whitey’s Welding & Fabrication, 5 Cl.Ct. at 286.
. In Amell, the Supreme Court found that an employee working on a government owned ship could file a wage claim exceeding $10,000 with the United States Claims Court because the Claims Court has been traditionally recognized as a forum to address government employee wage disputes. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903107/ | Order of fact-finding and disposition, Family Court, Bronx County (Fernando H. Silva, J.), entered on or about March 20, 2012, which, to the extent appealed from as limited by the briefs, after a fact-finding hearing, determined that respondent father had neglected the subject children, unanimously affirmed, without costs.
The finding of neglect was supported by a preponderance of the evidence (see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]). The testimony at the hearings demonstrated that the father had left the 9- and 10-year-old children home alone at night so that he could engage in a narcotics transaction, which resulted in his arrest. Further, during the five or six hours that the father was in police custody, he took no steps to ensure the safety of the children, during which time they locked themselves out of the apartment and went to a stranger’s apartment for help. Given the imminent danger of physical or mental impairment to the children, the finding of neglect was appropriate even though the children were not actually harmed (see Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]). Based on the father’s failure to testify, the court was allowed to draw the strongest inference against the father that the opposing evidence permitted (see Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983]). Concur—Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903108/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered July 15, 1986, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
*420Contrary to the defendant’s contention, we find that the evidence that as a result of being beaten by the defendant during the incident at bar, the complainant sustained a bloody nose and mouth and an injured shoulder, causing him pain lasting approximately one week, constituted legally sufficient evidence that the complainant suffered "physical injury” within the meaning of Penal Law § 10.00 (9) (see, Matter of Philip A., 49 NY2d 198, 200; People v Contes, 60 NY2d 620, 621). Moreover, upon the exercise of our factual review power, we are satisfied that the jury’s verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
We reject the defendant’s argument that the sentence was unduly harsh or excessive (see, People v Suitte, 90 AD2d 80). Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903109/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered February 4, 1987, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was denied a fair trial by the court’s failure to give a robbery justification charge pursuant to Penal Law § 35.15 (2) (b), based on his contention that he was the victim of a robbery. We disagree. On this record, there is no reasonable view of the evidence from which the jury could have concluded that the defendant was the victim of a robbery (see, People v Watts, 57 NY2d 299, 301). Viewing the evidence in the light most favorable to the accused, the defendant’s version of the incident is that prior to the shooting, his victims sought to collect their winnings on a "number” which had not been purchased in the defendant’s store. Thus, this was not a robbery attempt but a dispute over whether the number had in fact been sold by the defendant. Since there is no basis in the record to conclude that the requisite elements of justification were present, the trial court was under no obligation to submit the requested charge to the jury (see, People v Alston, 104 AD2d 653, 654; cf., People v Fuller, 74 AD2d 879).
We have examined the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Kunzeman, J. P., Fiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4158243/ | J-A04007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.B.,
Appellant No. 3115 EDA 2016
Appeal from the Order Entered August 1, 2016
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 1186 CV 2016, 193 DR 2016
BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 05, 2017
A.B. (“Father”) appeals the order entered August 1, 2016, permitting
K.C. (“Mother”) to relocate with the parties’ minor sons, A.C.B., born in
January of 2012, and R.M.B., born in May of 2013 (collectively, the
“Children”), from Brodheadsville, Monroe County, Pennsylvania, to Seaford,
Sussex County, Delaware. The order also awarded shared legal custody of
the Children to the parties and primary physical custody to Mother with
periods of physical custody to Father.1 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The trial court referred to this as shared physical custody. Order, 8/1/16,
at 18, ¶2.
J-A04007-17
On February 19, 2016, Mother filed a complaint for primary physical
custody of the Children and a request to relocate with the Children to
Seaford, Delaware.2 On February 23, 2016, Father filed a counter-affidavit
objecting to the proposed relocation. Mother filed a notice of proposed
relocation on February 24, 2016. On March 23, 2016, Father filed an answer
and new matter containing a modification request seeking primary physical
custody of the Children if Mother pursued relocation.3, 4
The court conducted a custody/relocation hearing on June 1, 2016.
Mother and Father, who were both represented by counsel, each testified on
their own behalf. In addition, the court heard from: Maternal Grandmother,
A.C.; Mother’s friend, Amanda Lloyd; Father’s employer and friend, Kevin
Conkle; Father’s employer, Frank Malpere; Paternal Grandmother, K.B.; and
Father’s cousin, B.R.5 At the time of the hearing, Mother and Father, who
____________________________________________
2
Mother grew up in the Seaford, Delaware area and her extended family,
including her mother, father, step-mother, sister, and brother, continue to
reside there. N.T., 6/1/16, at 7, 60. In addition, Mother and Father
previously resided in this area from August 2012 to August 2013. Id. at 15.
3
At the time of the hearing, Father requested primary physical custody if
Mother relocated to Delaware. In the event Mother chose not to relocate,
Father, however, requested shared physical custody. Id. at 225-226.
4
Upon review of the record, prior to the entry of the August 1, 2016 order,
the parties were not subject to a court order with regard to legal and
physical custody of the Children.
5
The trial court incorrectly refers to B.R. as Father’s sister. Opinion,
8/1/16, at 5.
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were separated and had a “strained” relationship, continued to reside
together in the same residence in Brodheadsville. N.T., 6/1/16, at 5, 13. At
the conclusion of the hearing, the court denied Mother’s oral request to
temporarily grant the relocation pending the court’s decision, and declined to
require Father to vacate the parties’ residence. Id. at 285-289.
By order dated and entered August 1, 2016, the court granted
Mother’s request to relocate to Seaford, Delaware. The court further
awarded shared legal custody to the parties, and primary physical custody to
Mother with physical custody to Father on alternating weekends from Friday
at 6:00 p.m. until Sunday at 5:00 p.m., at any time there is a break in the
school calendar of five consecutive days and as the parties agree.6 Also on
August 1, 2016, the court issued an opinion analyzing the required custody
and relocation factors. Thereafter, on August 26, 2016, Father timely filed a
notice of appeal and a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On September 6, 2016, the
court filed a formal opinion pursuant to Pa.R.A.P. 1925(a) incorporating, in
part, its opinion of August 1, 2016.7
In his brief on appeal, Father raises the following issues:
____________________________________________
6
The court further directed the parties to maintain the current shared
physical custody schedule until relocation occurs. Order, 8/1/16, at 18, ¶2A.
7
While the court’s opinion pursuant to Pa.R.A.P. 1925(a) was filed and
docketed on September 6, 2016, we note it was not forwarded until
September 7, 2016.
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A. Did the court err in its application of the relevant relocation
factors and ultimate finding that [M]other carried her burden
of showing the relocation and change in primary custody was
in the [C]hildren’s best interest?
B. Was it error for the court to consider evidence not of record,
which was not subjected to cross examination, including a
letter referencing a drug report and testimony which was
heard in a PFA matter on essentially the same facts by
another judge of concurrent jurisdiction?
Father’s Brief at 10 (emphasis omitted).
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.
§§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (internal citation
omitted).
We have stated:
the discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
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proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard:
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
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(7) Sole legal custody.
23 Pa.C.S. § 5323(a).
Section 5338 of the Act provides that, upon petition, a trial court may
modify a custody order if it serves the best interests of the child. 23 Pa.C.S.
§ 5338. Section 5328(a) sets forth the best interest factors that the trial
court must consider. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.
2011).
Section 5328(a) of the Act provides as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
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J-A04007-17
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Further, Section 5337(h) sets forth the relocation factors that a trial
court must consider when ruling on a relocation petition. E.D., 33 A.3d at
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79. Where a request for relocation of the subject child is involved, the trial
court must consider the following ten relocation factors set forth within
Section 5337(h) of the Act:
(h) Relocation factors.—In determining whether to grant a
proposed relocation, the court shall consider the following
factors, giving weighted consideration to those factors which
affect the safety of the child:
(1) The nature, quality, extent of involvement and
duration of the child’s relationship with the party
proposing to relocate and with the nonrelocating party,
siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and
the likely impact the relocation will have on the child’s
physical, educational and emotional development, taking
into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between
the nonrelocating party and the child through suitable
custody arrangements, considering the logistics and
financial circumstances of the parties.
(4) The child’s preference, taking into consideration the
age and maturity of the child.
(5) Whether there is an established pattern of conduct of
either party to promote or thwart the relationship of the
child and the other party.
(6) Whether the relocation will enhance the general
quality of life for the party seeking the relocation,
including, but not limited to, financial or emotional benefit
or educational opportunity.
(7) Whether the relocation will enhance the general
quality of life for the child, including, but not limited to,
financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
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(9) The present and past abuse committed by a party or
member of the party’s household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S. § 5337(h). See E.D., 33 A.3d at 81 (“Section 5337(h) mandates
that the trial court shall consider all of the factors listed therein, giving
weighted consideration to those factors affecting the safety of the child.”)
(emphasis in original).
Further, with regard to the custody and relocation factors, we have
stated as follows:
“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). Section 5337(h) requires courts to consider all
relocation factors. E.D., supra at 81. The record must be clear
on appeal that the trial court considered all the factors. Id.
Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). Section
5323(d) applies to cases involving custody and relocation.
A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa.Super. 2013). A.V. v.
S.T., 87 A.3d 818, 823 (Pa. Super. 2014).
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M.
v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
[620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of
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reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.
A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014) (emphasis in
original). Moreover, “When a custody dispute involves a request by a party
to relocate, we have explained ‘there is no black letter formula that easily
resolves relocation disputes; rather, custody disputes are delicate issues that
must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417,
421 (Pa. Super. 2012) (quoting Baldwin v. Baldwin, 710 A.2d 610, 614
(Pa. Super. 1998)).
Turning to Father’s first issue, he asserts that the trial court misapplied
the relevant relocation factors and erred in finding Mother established that
primary physical custody and relocation was in the Children’s best interest.
Father’s Brief at 14. Father argues that, as he was involved with the
Children on a daily basis, his “full-time role . . . was not adequately
addressed, the order was inappropriate under the law, and not in the
children’s best interest.” Id. Referencing a lack of career advancement,
poor educational performance, the necessity for daycare and impact on daily
routine, and severance of family bonds, he proffers that Mother presented
“no compelling reason” for relocation and “[a]bsent[] the alleged conflict
between the parties, relocation is clearly not warranted.” Id. Father avers
relocation affords “no great improvement” to the quality of life for Mother or
the Children. Id. at 16-17. Likewise, given his and his family’s extensive
involvement with the Children, coupled with Mother’s desire to relocate three
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and one-half hours away, Father argues there is no adequate substitute
custody arrangement. Id. at 17. Lastly, Father questions the trial court’s
finding of no educational advantage weighing towards the Children’s quality
of life and long-term well-being in light of the evidence of Seaford School
District’s poor performance. Id. at 18. Noting the statistical evidence
presented as to the two school districts in question, Father states, “Despite
these facts, the trial court found, that ‘neither School has an educational
advantage over the other,’ which is clearly against the facts as presented.”
Id. (internal citation omitted).
As we construe this issue, Father questions the trial court’s findings of
fact and determinations regarding credibility and weight of the evidence.
Under the aforementioned standard of review applicable in custody matters,
these are not disturbed absent an abuse of discretion. See C.R.F., 45 A.3d
at 443. Upon review, we find no abuse of discretion.
In the case at bar, as required by law, the trial court carefully analyzed
and addressed the factors under Section 5328(a) and Section 5337(h) in
considering the Children’s best interests and relocation. Opinion, 8/1/16, at
5-13. Significant to the trial court were Father’s anger and threatening
behavior and the resulting conflict between the parties, as well as Father’s
drug use. Id. at 6-10, 13-14.
Mother described the home environment as “toxic” and “hostile”
noting, “[Father] is very angry. He does not communicate well, so it tends
to lead to arguments, lots of yelling, lots of screaming. . . .” N.T. 6/1/16, at
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31. She confirmed that this led to destructive behavior, such as Father
breaking things and putting holes in walls. Id. at 32-33.
Moreover, evidence was also presented of Father’s threatening
behavior. Most recently, approximately one week prior to the
custody/relocation hearing and the morning of the pre-hearing, Mother
indicated that she called the police after Father became angered that she
gave child A.C.B. milk in bed, and he threatened Mother. N.T., 6/1/16, at
38. Mother testified, “He was very angry. He had threatened against [sic]
me he was going to harm me. And then when he left in his fit of anger, he
took his handgun with him and left the house very abruptly.” Id. at 38-39.
Specifically, as reported by Mother, Father stated “he was going to knock
[me] out and he should have done it a long time ago.” Id. at 38, 115.
Similarly, Mother recounted another incident where Father became angered
and flipped the mattress after A.C.B. had an accident and wet the bed. Id.
at 33-34. Discussing this incident, Father admitted he was “not a great role
model” for his children. Id. at 265.
In yet another incident, Mother described Father becoming angered
with and confronting another driver with a gun while the Children were in
the car. N.T., 6/1/16, at 40-41. In addition, altercations between Father
and his brother-in-law, as well as Father and his uncle, were related. Id. at
19-20, 43. Further, Mother testified that Father smoked marijuana “daily,”
including while the Children were in his care. Id. at 42. While Father
indicated his intent not to smoke in the future, he acknowledged that he last
- 12 -
J-A04007-17
smoked two and one-half to three weeks prior to the custody/relocation
hearing. Id. at 235, 262.
In summarizing its analysis, the trial court stated as follows:
In conclusion, we find that the factors weigh more heavily
in favor of the Children relocating to Seaford, Delaware. We
make this determination after careful review of the record and
evidence. While no one factor alone outweighs any other factor,
we must consider all the factors together to determine what is
best for the Children. Father has had repeated outbursts, the
last one which resulted in the issuance of a PFA. In addition,
after Father indic[a]ted that he does not want to use drugs, he
recently tested positive for a controlled substance. We are
concerned about the level of hostility between the parties and
Father’s apparent inability to control his anger. We will require
Father to continue with anger management counseling and drug
and alcohol treatment. In weighing all if [sic] these factors; we
believe that it would be in the best interests of the Children to
relocate with Mother. Accordingly, we will grant Mother’s
request to relocates [sic] and her request for primary physical
custody of the Children.
Nevertheless, we recognize that Father has been involved
in the Children’s lives. As such, we will grant Father extended
periods of visitation over school holidays and during summer
school vacation. We believe, however, that Mother will be better
able to continue to provide the care and support for the Children
and that the relocation will be in the best interests of the
Children. . . .
Trial Court Opinion, 8/1/16, at 13-14.
After review of the record, we determine that the trial court’s findings
regarding the custody factors set forth in Section 5328(a) and relocation
factors set forth in Section 5337(h) and determinations regarding the
Children’s best interests and relocation are supported by competent
evidence in the record. See C.R.F., 45 A.3d at 443. As we find that the
- 13 -
J-A04007-17
trial court has not abused its discretion, and its conclusions are not
unreasonable in light of the sustainable findings of the trial court, we will not
disturb them. Id.
In his second issue, Father maintains the trial court committed
reversible error by considering extra-judicial evidence not subject to cross-
examination in violation of his right to due process.8 Father’s Brief at 19.
Specifically, Father points to a letter forwarded post-hearing that referenced
drug test results from Catholic Social Services, as well as a Protection from
Abuse (“PFA”) order entered against Father post-hearing.9 Id. Father
suggests the trial court’s consideration of this evidence “had a prejudicial
effect” on the court’s analysis and determination of the relevant factors. Id.
Moreover, Father argues the court’s consideration of this evidence was in
violation of his right to due process and the “in court presentation of
evidence.” Id. at 19-20. Father further maintains that the court’s
consideration of this evidence as it relates to the PFA order was in violation
of the coordinate jurisdiction rule. Id. at 20. Father posits that, with the
PFA, Mother was attempting to exclude Father from the joint home based
upon the same evidence presented at the June 1, 2016 custody/relocation
hearing, where she was unsuccessful. Id. at 22.
____________________________________________
8
We observe Father proceeded to provide extra-judicial evidence of his own
with his submissions to this Court.
9
A final PFA order was entered against Father on July 25, 2016.
- 14 -
J-A04007-17
In assessing this challenge, the trial court found a lack of prejudice to
Father with regard to its ultimate determination regarding custody and
relocation. The trial court stated:
[Father] complains that we erred in considering evidence
which is not of record, a Protection from Abuse (“PFA”) Order.
The PFA Order was entered after our hearing but before our
Opinion was filed. We took judicial notice of the PFA Order
which was issued by another judge of this Court. Nevertheless,
we found [Mother] credible in her testimony concerning
[Father’s] anger and outbursts. The issuance of the PFA did not
have a prejudicial effect on our consideration of the factors for
custody or granting of [Mother’s] request to relocate.
In his next point of error, [Father] complains that we
committed an error in admitting evidence related to an alleged
positive test by [Father] for controlled substances. First, we did
not admit the letter into evidence which references the positive
test by [Father] for controlled substances. However, we agree
that we should not have addressed the positive test by [Father]
in our Opinion. Nevertheless, it does not change our decision
about what is in the Children’s best interest and permitting the
relocation to Seaford, Delaware. We find no error in this issue.
Statement Pursuant to Pa.R.A.P. 1925(a), 9/6/16, at 1-2 (unpaginated).
With this, we agree.
An error will be deemed harmless if:
(1) the error did not prejudice the defendant or the prejudice
was de minimus; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence . . . was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007). See
Foflygen v. Allegheny General Hospital, 723 A.2d 705, 708 (Pa. Super.
- 15 -
J-A04007-17
1999) (“[Evidentiary] rulings must be shown to have been not only
erroneous but also harmful to the complaining part[y].”).
Instantly, as indicated above, evidence was presented that Father
smoked marijuana on a daily basis, including while the Children were in his
care. N.T., 6/1/16, at 42. Father himself admitted to having smoked
marijuana within two and one-half to three weeks of the custody/relocation
hearing. Id. at 235, 262. Moreover, Father had not completed a drug and
alcohol evaluation as court-ordered.10 Id. at 234-235, 260-262.
As to Father’s anger and abusive behavior, evidence was presented
regarding incidents involving Father’s outbursts and threatening behavior,
including those directed to and in the presence of the Children and involving
firearms. Id. at 33-34, 38-41. In addition, Father had not completed anger
management, as court-ordered.11 Id. at 233-234, 257-259. As such, there
was sufficient evidence with regard to Father’s drug use and anger that the
post-hearing evidence regarding drug test results and a PFA was merely
____________________________________________
10
By order dated March 15, 2016, and entered March 18, 2016,
incorporating the recommendations of the custody conciliation conference,
Father was directed to submit himself to Catholic Social Services for a drug
and alcohol evaluation and follow all recommendations for treatment. Order,
3/18/16, Recommendation, ¶2.
11
Also by order entered March 18, 2016, Father was instructed to attend
family counseling focusing on anger management at Catholic Social Services
for consecutive weeks. Order, 3/18/16, Recommendation, ¶1.
- 16 -
J-A04007-17
cumulative and was not prejudicial, thereby rendering any error harmless.
Thus, Father’s claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2017
- 17 - | 01-03-2023 | 04-05-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4136831/ | Hon. R. E. Swift Opinion No. I&?- 149
County Attorney
Anderson County Re: Is the County Tax Collec-
Palestine, Texas tar entitled to receive
the penalty and interest
from the taxpaver when
the taxpayer failed to
receive his notice because
of wrong address. And
related question.
Dear Sir:
You request the opinion of this office upon thc’question pre-
santed in your letter of May 20, 1957. which we quote aS follows:
.. .
“I would like to have an opinion as to the matter
hereinafter set forth. The fact situation is this.: A County
Taxpayer was sent notice in due time for the amount of
taxes due by him for the year 1956, which address was
was taken from the tax rolls. However, the notice was
returned to the County Tax Collector because the taxpayer
had moved and therefore the address was wrong. The tax-
payer came to the Tax Collector’s Office in May of 1957 and
wanted to pay his taxes but refused to pay his penalty and
interest that had accrued. Is the County Tax Collector
entitled to receive the penalty and interest from the tax-
payer in this situation? Also would the Tax Assessor and
Collector. be authorized to forego the penalty and interest
that had accrued? ”
The short answer to your question is that the Constitution and
Statutes of this State nowhere require the Tax Assessor-Collector to
notify a taxpayer of the amount of ad valorem taxes assessed against him
and his property on the current rolls as a prerequisite to his liability to
pay the taxes, or the Statutory penalties and interest if permitted to
become delinquent. It is our understanding that it is prevalent practice
for the Tax Assessor-Collector to send notices to the taxpayers of the
amount of State and County taxes assessed against them upon the current
roll, directing such notice to the address of the taxpayer as shown by the
tax rolls; but. as stated above, this is not required by law.
The Constitution of this Stntc requires that all property be taxed,
other than municipal, except that exempt under the Constitution or excmptet!
by the Legislature under the authority of the Constitution. Article 8, Section1 ,
and Article 8. Section 2 of the Constitution.
Hon. R. E. Swift, Page 2 ww- 149
Article 7336, Vernon’s Civil Statutes, prescribes the time for
the payment of taxes which, i f not paid within the time prescribed, be-
come delinquent and subject to the penalties and interest therein
prescribed. All the foregoing taxpayers are presumed to know without
any notice from the Tax Assessor-Collector.
Article 7324, Vernon’s Civil Statutes, has nothing to do
with current taxes but applies only to delinquent taxes, and even under
this Statute the failure of the Tax Assessor-Collector to give the
notice or the twuaver to receive the notice.is no defense to a delin-
quent tax suit. ga&hill v. State, 115 Tex., 258, 280 S.W. 73.2.
You are therefore advised under the facts submitted the
taxpayer is liable for the penalties, and interest prescribed by Article
7336, Vernon’s Civil Statutes, and the Tax Assessor:Colleitor has
no authority to waive them.
SUMMARY
The Constitution and Statutes of this State impose no
duty upon the Tax Assessor-Collector to give an ad valorem
taxpayer notice of the amount of taxes assessed against hi
on the current tax rolls. The taxpayer is presumed to know
that his property is subject to tax and the time of payment to
prevent delinquency. If the taxes are not paid before they
become delinquent, the taxpayer is liable for penalties and
interest prescribed by Article 7336, Vernon’s Civil Statutes,
whether notified by the Tax Assessor-Collector or not, and
the Tax Assessor has no authority to waive.penalties and
interest.
Yours very truly,
WILL WILSON
LPL:nr Attorney General
APPROVED:
.&A%- -/
OPINION COMMITTEE BY i!!Y
H. Grady Chandler, Chairman L,. P. Lollar
Assistant
J. W. Wheeler ,
Byron Fullerton
Richard Wells
REVIEWED FOR THE ATTORNEY GENERAL
BY:
Geo. P. Blackburn | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5903112/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zelman, J.), rendered November 7, 1985, convicting him of criminal possession of a controlled substance in the second degree and criminally using drug paraphernalia in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was arrested after police made a warrantless entry into a commercial establishment containing a social club and an upstairs apartment, seeking to arrest two men who had sold their undercover agent a glassine envelope of white powder in the vestibule of the commercial establishment. Inside the apartment and not far from the defendant were more than 100 glassine envelopes containing what was later found to be cocaine.
The defendant argues that the cocaine found by the police must be suppressed, because it was the product of an illegal search. Initially, the defendant does not have standing to challenge the search since he did not demonstrate ownership, or the right to occupancy, or whether he had the right to exclude others from the premises (People v Rodriguez, 69 NY2d 159, 162-163). While the defendant’s claim to standing is based on the fact that he opened the door to the police and the fact that he ordered his codefendants to take soda out of a room before they spilled it on the rug, these actions, in and of themselves, do not show that the defendant had a reasonable expectation of privacy in the premises (see, People v Ponder, 54 NY2d 160, 166).
Even if the defendant had standing to contest the legality of the search, it is clear that the search was undertaken under exigent circumstances (see, People v Clements, 37 NY2d 675, cert denied sub nom. Metzger v New York, 425 US 911). The Court of Appeals has set out the following factors to aid in a determination of whether exigent circumstances exist: " '(1) the degree of urgency involved and the amount of time necessary to obtain a warrant * * * (2) [a] reasonable belief that the contraband is about to be removed * * * (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought * * * (4) infor*423mation indicating the possessors of the contraband are aware that the police are on their trail * * * (5) the ready destructibility of the contraband and the knowledge "that efforts to dispose of narcotics and to escape are characteristic behavior of persons involved in the narcotics traffic” ’ ” (People v Clements, supra, at 684-685, citing United States v Rubin, 474 F2d 262, 268, cert denied sub nom. Agran v United States, 414 US 833).
Applying these factors to the instant case, it is apparent that the police were faced with exigent circumstances. It seemed that the sellers knew that the police were on their trail. Only a short time previously they had allowed three different customers into the building over a 15-minute period, including the undercover agent, who they did not know. When the police were lined up on either side of the door, however, no entry was permitted. In addition, there was a possibility of danger to policemen who would guard the building while a warrant was being obtained, because, as the police knew from their undercover agent, the sellers were armed. In addition, the narcotics the two men were selling could easily be destroyed or removed in the time that it would take to obtain a search warrant. Finally, it is common knowledge, as noted by the Court of Appeals, that efforts to destroy evidence and escape are characteristic of those involved in such narcotics traffic (People v Clements, supra, at 685).
Since there were exigent circumstances, the police would have been justified in entering the apartment even if it were the sellers’ home (Payton v New York, 445 US 573, 590). Therefore, the police were correct in entering and once they were legitimately inside they could seize the contraband that was in plain view and arrest the occupants (Payton v New York, supra, at 587).
At the defendant’s trial evidence of the drug sale was introduced, although the defendant was not charged with the sale of the drugs. Evidence of uncharged crimes is generally inadmissible to prove a criminal disposition (People v Allweiss, 48 NY2d 40). However, the evidence of the drug sale was properly admitted because it was inextricably interwoven with the events that led up to the defendant’s arrest (see, People v Quesada, 118 AD2d 604).
Finally, the defendant objects to the prosecutor’s statements in summation that he was running a drug factory. In both instances the defense attorney either did not object to the statement, or did not object to the adequacy of the curative instruction. Thus the issue was not preserved for appellate *424review (CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953), and we decline to exercise our interest of justice jurisdiction to review such alleged errors. Mangano, J. P., Thompson, Bracken and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903113/ | Order of fact-finding and disposition, Family Court, Bronx County (Fernando H. Silva, J.), entered on or about March 20, 2012, which, to the extent appealed from as limited by the briefs, after a fact-finding hearing, determined that respondent father had neglected the subject children, unanimously affirmed, without costs.
The finding of neglect was supported by a preponderance of the evidence (see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]). The testimony at the hearings demonstrated that the father had left the 9- and 10-year-old children home alone at night so that he could engage in a narcotics transaction, which resulted in his arrest. Further, during the five or six hours that the father was in police custody, he took no steps to ensure the safety of the children, during which time they locked themselves out of the apartment and went to a stranger’s apartment for help. Given the imminent danger of physical or mental impairment to the children, the finding of neglect was appropriate even though the children were not actually harmed (see Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]). Based on the father’s failure to testify, the court was allowed to draw the strongest inference against the father that the opposing evidence permitted (see Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983]). Concur—Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903114/ | Appeal by the defendant from a
judgment of the County Court, Dutchess County (King, J.), rendered November 19, 1984, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738) in which he moved to be relieved of the assignment to prosecute this appeal.
Ordered that the motion is granted, Grant W. Kelleher is relieved as attorney for the defendant and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,
Ordered that Robert Isseks, of 41 Dolson Avenue, Box 2002, Middletown, New York, 10940, is assigned as counsel to perfect the appeal; and it is further,
Ordered that the People are directed to furnish a copy of the stenographic minutes to the new assigned counsel; and it is further,
Ordered that new counsel shall serve and file a brief on behalf of the defendant within 90 days of the date of this decision and order and the People shall serve and file their brief within 120 days of the date of this decision and order; the appeal is held in abeyance in the interim; by prior decision and order of this court, the defendant was granted leave to prosecute the appeal on the original papers (including the typewritten stenographic minutes) and on the typewritten briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.
Based upon this court’s independent review of the record, we conclude that arguable issues exist with respect, inter alia, to the suggestiveness of the photographic identification of the defendant. Under the circumstances, the motion of the defendant’s assigned counsel is granted and new appellate counsel is assigned (see, People v Gonzalez, 47 NY2d 606; People v Casiano, 67 NY2d 906; People v Miller, 99 AD2d 1021). Mangano, J. P., Thompson, Bracken and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903115/ | *485Order, Surrogate’s Court, New York County (Kristin Booth Glen, S.), entered on or about September 28, 2012, which granted petitioners’ motion for summary judgment dismissing objector’s objections to probating the will, unanimously affirmed, without costs.
In opposition to the self-proving affidavits submitted by petitioners establishing the decedent’s competency at the time her will was executed (see Matter of Schlaeger, 74 AD3d 405 [1st Dept 2010]), objector submitted a medical opinion to the contrary by a doctor who had never examined decedent and based her opinion solely on medical records (see Matter of Van Patten, 215 AD2d 947, 949 [3d Dept 1995], lv denied 87 NY2d 802 [1995]). Moreover, the decedent was examined shortly before she executed the will by a psychiatrist hired by her trust and estates lawyer and was found competent.
The fact that the decedent’s lawyer was referred to her by petitioners is insufficient to raise an issue of fact as to undue influence (see Matter of Walther, 6 NY2d 49, 54-55 [1959]). Moreover, the decedent adequately explained in the will her exclusion of objector therefrom.
Objector failed to identify any knowing misstatement by petitioners to support his objection based on fraud. Concur— Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1362758/ | 686 F. Supp. 427 (1988)
MINPECO, S.A., Plaintiff,
v.
Nelson Bunker HUNT, Lamar Hunt, William Herbert Hunt, International Metals Investment Co., Ltd., Sheik Mohammed Aboud Al-Amoudi, Sheik Ali Bin Mussalem, Naji Robert Nahas, Gilion Financial, Inc., Advicorp Advisory and Financial Corporation, S.A., and Mahmoud Fustok, Defendants.
No. 81 Civ. 7619.
United States District Court, S.D. New York.
May 12, 1988.
*428 Cole Corette & Abrutyn, Washington, D.C. (Mark A. Cymrot, Thomas O. Gorman, Pedro R. Pierluisi, of counsel), Grand & Ostrow, New York City, for plaintiff Minpeco, S.A.
Kaye, Scholer, Fierman, Hays & Handler, New York City (Aaron Rubinstein, Paul J. Curran, Stanley D. Robinson, Michael Malina, David S. Copeland, of counsel), Gardere & Wynne, Dallas, Tex. (Robert E. Wolin, of counsel), for defendants Nelson Bunker Hunt, William Herbert Hunt and Lamar Hunt.
Curtis, Mallet-Provost, Colt & Mosle, New York City (Herbert Stoller, Turner P. Smith, of counsel), for defendant Mahmoud Fustok.
Laxalt, Washington, Perito & Dubuc, Washington, D.C. (Paul L. Perito, of counsel), for defendant Intern. Metals Inv. Co., Ltd.
Debevoise & Plimpton, New York City (Andrew C. Hartzell, Jr., Standish F. Medina, Jr., Michael E. Wiles, Timothy J. Toohey, of counsel), for ACLI Intern. Commodity Services, Inc.
LASKER, District Judge.
Plaintiff Minpeco S.A. ("Minpeco") moved for partial summary judgment on defendants' "single entity" theory on January 4, 1988. The motion was granted prior to the commencement of trial in this action on February 18, 1988. This opinion sets forth the grounds for that decision.
Defendants' "single entity" theory alleges that Peru's mining sector was a single entity or enterprise controlled by the Government of Peru from "cradle to grave":
Minpeco in 1979 and 1980 was a creature of the Revolutionary Government's takeover of the entire mining sector in 1971, a takeover which led to Peru's total dominion over all aspects of the production, marketing and refining of the nation's minerals, including silver.[1]
*429 Hence, defendants argue that "Minpeco is obligated to include in its calculation of the required offset the benefits that accrued to the Government of Peru by virtue of the physical silver holdings of all Peru-owned and -controlled entities."[2]
The facts concerning the structure of Peru's mining sector and Minpeco's corporate structure in 1979-1980 are not in dispute. The State of Peru owns Peru's natural resources, including its mining fields. Peru assigns the right to exploit its mining fields to individuals and companies, both state-owned and private, which then have legal title to the minerals which they extract from the fields. In 1979-1980, Empresa Minera del Centro del Peru ("Centromin"), a stock corporation wholly owned by Minero Peru, a state-owned mining company, produced about half of Peru's silver in the form of silver bullion. Private miners produced the balance in the form of lead minerals and concentrates.
Minpeco is a state-owned corporation established in 1974 to engage in the trading of Peruvian mining products. In 1979-1980, Minpeco had the exclusive right and obligation to trade Centromin's and the private miners' silver production. Minpeco's articles of incorporation define it as a "public enterprise, as a juridical person of public internal law, with administrative, economic and technical autonomy." Minpeco has the legal right to have its own capital, to sue and be sued, to hold property in its own name and to contract in its own name.
Peru's central bank, Banco Central de Reserva del Peru ("BCR"), is a state-owned corporation that issues currency, regulates credit, administers exchange rates and maintains reserves. In 1979-1980 the BCR kept silver bullion as part of its reserves, either in its vaults or loaned to other entities.
The "single entity" defense was first raised in this action in 1982, when defendants moved for a separate trial on the issue of damages. Defendants argued that Minpeco is "an `arm' of the Peruvian government, and therefore cannot recover damages for losses caused by a rise in the price of silver, because the Peruvian government as a whole benefitted from the rise in price." Minpeco S.A. v. ContiCommodity Services, Inc., 549 F. Supp. 857, 858 (S.D.N. Y.1982). The motion was denied because defendants offered "no factual basis for disputing Minpeco's assertion that it is a corporation, a separate legal entity, organized validly and in good faith ...," id. at 858, but defendants were held to be "free to attempt to develop and put before the Court evidence, if any, that Peru and Minpeco have engaged in conduct which justify disregarding Minpeco's corporate existence," id. at 859.
After five years of extensive discovery on this issue, defendants assert that they have developed "substantial evidence establishing that Minpeco and the other entities in the Peruvian mining sector constitute a single enterprise,"[3] sufficient that a jury could reasonably find for defendants on this issue. Minpeco responds that the evidence of record is insufficient as a matter of law to overcome the presumption established by the Supreme Court in First National City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611, 626-27, 103 S. Ct. 2591, 2600, 77 L. Ed. 2d 46 (1983) ("Bancec"), that "government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such."
Drawing all justifiable inferences in favor of defendants, I still conclude that defendants have failed to make a sufficient demonstration that either Minpeco or Peru has engaged in conduct which could overcome the Bancec threshold presumption in favor of honoring the separate legal status of a government corporation. Because there is insufficient evidence of record to allow a reasonable jury to find for defendants on the single entity defense, the motion for partial summary judgment under Fed.R.Civ.P. 56 is granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
*430 I.
First National City Bank v. Banco Para El Comercio, 462 U.S. 611, 103 S. Ct. 2591, 77 L. Ed. 2d 46 (1983) ("Bancec"), sets forth the legal framework for decision on this motion. The Bancec court considered whether a claim asserted against Citibank in the United States federal courts by Bancec, a foreign trading bank created and wholly owned by the government of Cuba but established as a separate juridical entity, could be subject to a set-off for Citibank's counterclaim against Cuba. In 1960 the Cuban Government had nationalized through forced expropriation the Cuban properties of United States citizens, including properties owned by Citibank. In 1961 Bancec sued in the Southern District of New York to recover on a letter of credit established by Citibank in a transaction for the sale of sugar. The Cuban Government then dissolved Bancec and transferred its assets, first to several government agencies which had been involved in the 1960 nationalizations, and later to several government corporations. After Bancec's dissolution, Citibank counterclaimed in the Bancec action, seeking a set-off on the letter of credit for the value of its seized assets in Cuba.
In determining whether Citibank was entitled to a set-off, the Bancec court described the characteristics and growing importance, especially in developing countries, of government instrumentalities established as separate juridical entities:
Increasingly during this century, governments throughout the world have established separately constituted legal entities to perform a variety of tasks. The organization and control of these entities vary considerably, but many possess a number of common features. A typical government instrumentality, if one can be said to exist, is created by an enabling statute that prescribes the powers and duties of the instrumentality, and specifies that it is to be managed by a board selected by the government in a manner consistent with the enabling law. The instrumentality is typically established as a separate juridical entity, with the power to hold and sell property and to sue and be sued. Except for appropriations to provide capital or to cover losses, the instrumentality is primarily responsible for its own finances. The instrumentality is run as a distinct economic enterprise; often it is not subject to the same budgetary and personnel requirements with which government agencies must comply.
These distinctive features permit government instrumentalities to manage their operations on an enterprise basis while granting them a greater degree of flexibility and independence from close political control than is generally enjoyed by government agencies. These same features prompt governments in developing countries to establish separate juridical entities as the vehicles through which to obtain the financial resources needed to make large-scale national investments.
462 U.S. at 624-25, 103 S. Ct. at 2598-99 (footnotes omitted).
Consideration for the political and economic importance of the government instrumentality as an instrument for development led the Court to establish a presumption in favor of honoring a foreign government's determination that its instrumentality is to be accorded separate legal status:
Freely ignoring the separate status of government instrumentalities would result in substantial uncertainty over whether an instrumentality's assets would be diverted to satisfy a claim against the sovereign, and might thereby cause third parties to hesitate before extending credit to a government instrumentality without the government's guarantee. As a result, the efforts of sovereign nations to structure their governmental activities in a manner deemed necessary to promote economic development and efficient administration would surely be frustrated. Due respect for the actions taken by foreign sovereigns and for principles of comity between nations leads us to conclude ... that government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such. *431 Id. at 626, 103 S. Ct. at 2600 (citation omitted).
The Court also concluded, however, that the favorable presumption can be overcome, noting that:
[i]n discussing the legal status of private corporations, courts in the United States and abroad, have recognized that an incorporated entity ... is not to be regarded as legally separate from its owners in all circumstances. Thus, where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, we have held that one may be held liable for the actions of the other. In addition, our cases have long recognized "the broader equitable principle that the doctrine of corporate entity, recognized generally and for most purposes, will not be disregarded when to do so would work fraud or injustice.
462 U.S. at 628-29, 103 S. Ct. at 2601 (citations omitted) (emphasis in original).
The Court concluded that the presumption of separateness should be set aside on equitable grounds in Bancec's case. The Court noted that Bancec itself had been dissolved and its assets distributed to government agencies which had played a direct role in the expropriation of Citibank's assets:
Giving effect to Bancec's separate juridical status in these circumstances, even though it has long been dissolved, would permit the real beneficiary of such an action, the Government of the Republic of Cuba, to obtain relief in our courts that it could not obtain in its own right without waiving its sovereign immunity and answering for the seizure of Citibank's assetsa seizure previously held ... to have violated international law. We decline to adhere blindly to the corporate form where doing so would cause such an injustice.
Id. at 632, 103 S. Ct. at 2603 (citation omitted).
In sum, Bancec establishes two propositions. First: there is a strong presumption that a government instrumentality is legally separate from its government owner. See Hercaire International, Inc. v. Argentina, 821 F.2d 559, 565 (11th Cir. 1987) (Bancec "presumption of independent status is not to be lightly overcome"); Letelier v. Republic of Chile, 748 F.2d 790, 795 (2d Cir.1984) ("Bancec ... caution[s] against too easily overcoming the presumption of separateness"), cert. denied, 471 U.S. 1125, 105 S. Ct. 2656, 86 L. Ed. 2d 273 (1985). Second: the presumption may be overcome where necessary to avoid fraud or injustice. The decision also advises by analogy to the domestic law of private corporations that separate status will also be disregarded in the case of abuse of corporate form such that "a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created." See Letelier, 748 F.2d at 794 (quoting from Bancec, 462 U.S. at 629, 103 S. Ct. at 2601); accord, Hercaire, 821 F.2d at 565. It is noted that neither party has pointed to nor has this court found any case following Bancec in which the presumption of separateness has been determined to be overcome.
II.
This legal framework must now be applied to the present case.[4] According to defendants, the evidence of record is sufficient to allow a reasonable jury to conclude that in Minpeco's case the Bancec presumption *432 has been overcome both on the ground of fraud or injustice and on the ground of excessive control:
the record in this case is replete with evidence of Peru's total control of the state-owned corporations within the mining sector. Furthermore, the evidence reveals the injustice that would occur if Minpeco were permitted to recover damages for its "losses" in the silver market without an appropriate offset for the corresponding gains in the same market enjoyed by other elements of the Peru-dominated mining sector. In short, defendants are prepared to meet the Bancec standard at trial.[5]
A.
In the case at hand, defendants have failed to demonstrate that there is any evidence of record which could support a finding of the kind of "injustice" that might justify overcoming the Bancec presumption on equitable grounds. Defendants argue that recognition of Minpeco's separate legal status would work an injustice because it would allow Peru a windfall recovery in the event of a verdict for Minpeco. The argument, however, begs the question: if Minpeco is indeed Peru's alter ego, it could be regarded as inequitable to allow Peru, through Minpeco, to recover a windfall, but the very question which must be determined on this motion is whether there is sufficient evidence of record to support such a conclusion.
In essence, defendants make the argument rejected by the Court of Appeals for this circuit in Banco Nacional de Cuba v. Chemical Bank, 782 F.2d 377 (2d Cir.1986). In that case, decided after the Bancec ruling, the Second Circuit declined to modify its earlier decision to deny an American bank a set-off on a claim against it by Banco Nacional, Cuba's state-owned national bank, even though the Cuban government had expropriated assets in which the American bank had an interest. The court rejected defendant's argument that denial of the setoff was "unfair" merely because, inter alia, "Banco Nacional is an instrumentality of the Cuban government" and "Banco Nacional's success in collecting the balance in its account from [the American bank] will therefore inure to the benefit of the Cuban government," concluding that "[t]hese facts can hardly suffice to require deviation from the normal rule." 782 F.2d at 380. Similarly, defendants' argument here that it would be unfair to recognize Minpeco's separate status because a recovery by Minpeco would constitute a windfall for Peru is by itself legally insufficient to overcome the Bancec presumption.
B.
Defendants' claim that the Bancec presumption should be set aside because of "Peru's total control of the state-owned corporations within the mining sector"[6] requires greater consideration. To determine whether Minpeco "is so extensively controlled by its owner that a relationship of principal and agent is created," Bancec, 462 U.S. at 629, 103 S. Ct. at 2601, decisions governing the legal status of private corporations provide guidance. See Bancec, 462 U.S. at 628-30, 103 S. Ct. at 2601-02. In examining the evidence, however, it must also be remembered that Bancec holds that, for economic and political reasons, governmental instrumentalities enjoy a special status and a presumption of separateness that is unique to government corporations.
Under general principles of corporate law, before a corporation's separate identity will be disregarded:
there must be such unity of interest and ownership that the separate personalities of the corporation and individual no longer exist, and circumstances must indicate that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice. The common significant factors which would justify disregarding a corporate entity have been undercapitalization, failure to observe formalities, nonpayment of dividends, *433 siphoning of corporate funds by dominant stockholders, nonfunctioning of other officers or directors, absence of corporate records, use of the corporation as a facade for the operations of the dominant stockholder, and use of the corporate entity in promoting injustice or fraud.
1 Fletcher Cyclopedia of the Law of Private Corporations § 41.30 at 428-29 (perm. ed. 1983); accord, Walter E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50, 53 (2d Cir.1984) (similar factors relevant under New York law); Kashfi v. Phibro-Salomon, Inc., 628 F. Supp. 727, 732-33 (S.D.N.Y.1986) (same); Establishment Tomis v. Shearson Hayden Stone, Inc., 459 F. Supp. 1355, 1365 (S.D.N.Y.1978) (same).[7]
The decision in Letelier v. Republic of Chile, 748 F.2d 790 (2d Cir.1984), illustrates how these principles apply to government corporations. In Letelier, plaintiffs sought to satisfy a judgment on conspiracy charges against the Government of Chile by seizing the assets of LAN, Chile's national airline. The district court concluded that under Bancec, it was permissible to disregard LAN's separate legal status because 1) LAN's assets and facilities were under the direct control of Chile, which had the power to use them; 2) Chile could have decreed LAN's dissolution and taken over property interests held in LAN's name; and 3) Chile had used LAN to facilitate the conspiracy. 748 F.2d at 794.
The Court of Appeals reversed. Although it recognized that under Bancec, the corporate identity of a government instrumentality could be set aside "if the foreign state has abused the corporate form, or where recognizing the instrumentality's separate status works a fraud or an injustice," id., the facts found by the district court did not amount to
the sort of "abuse" that overcomes the presumption of separateness established by Bancec. Joint participation in a tort is not the "classic" abuse of corporate form to which the Supreme Court referred. ... The facts that the district court "found" here do not add up to anything that resembles the abuses in the decisions cited in Bancec. None of these facts showed that Chile ignored LAN's separate status.... There was no finding that LAN's separate status was established to shield its owners from liability for their torts or that Chile ignored ordinary corporate formalities.
Id.[8]
On this motion for summary judgment, defendants must demonstrate that there is *434 sufficient evidence of record to allow a reasonable jury to find for the defendants on two propositions. First, there must be sufficient evidence to overcome the Bancec presumption in favor of Minpeco's separate status and allow a finding that Minpeco was the Government of Peru's alter ego. Defendants contend that under their single entity theory, Minpeco must include in its offset calculations the benefits that accrued to Peru as a result of the rise in silver prices in 1979-1980. However, the Government of Peru per se does not itself own any physical silver. Hence, defendants must also demonstrate sufficient evidence to overcome the Bancec presumption as to the two government instrumentalities which did own physical silver in 1979-1980: Centromin, the state-owned silver mining company, and Banco Central de Reserva, the central bank.[9] I conclude that, as to all three government instrumentalities, there is insufficient evidence of record to allow a reasonable jury to find that defendants have overcome the Bancec presumption.
1. Minpeco
Defendants allege that there is evidence of seven factors which raise a genuine issue for trial as to whether Minpeco was Peru's alter ego. First, defendants argue that Minpeco's overriding aim was to benefit the Peruvian economy. Defendants maintain that the evidence to the effect that Peru set up Minpeco to try to develop its mining industry and that one of Minpeco's stated goals is to benefit the Peruvian economy tends to demonstrate that Peru dominated Minpeco. This evidence, however, is irrelevant as to the issue whether the Bancec presumption has been overcome. As Bancec recognizes, the very purpose of the typical government corporation is to act as "an essential instrument of economic development in the economically backward countries which have insufficient private venture capital to develop the utilities and industries which are given priority in the national development plan." Bancec, 462 U.S. at 625, 103 S. Ct. at 2599 (quoting from study). It is in the very nature of a government corporation to aim to benefit the economy of its owner government.
Second, defendants contend that there is evidence that Peru intervened in major policy decisions ordinarily reserved to management. Defendants allege the following evidence supports this contention:
a) A CFTC form filled out by Minpeco on which, in answer to the question, "Does anyone control your trading?", Minpeco checked the "yes" box and gave the Ministry of Trading and Energy as the name of the trader. Minpeco also checked a box saying it was the agent of Peru and financed by Peru.[10]
b) Minpeco's long-term goals, objectives and budget are subject to final approval by one or more Peruvian ministries.
c) Minpeco had only "nominal control" over its foreign offices in that its employees abroad were accorded a form of diplomatic status and the Government of Peru had final approval over which Minpeco *435 employees could travel abroad.[11] However, it is also undisputed that Minpeco's employees in foreign offices did not report to and were not in daily contact with Peru's embassy or consulates.[12]
d) Minpeco's decision to hire counsel in this case was subject to approval by the Peruvian government.[13] However, the record is clear that this approval was necessitated by a government resolution governing foreign exchange of currency, that generally required that all Peruvian companies, public and private, obtain government approval for the "[p]ayment of technical services provided from abroad by private individuals or companies."[14]
e) The Government of Peru appointed the members of Minpeco's nine-member Board of Directors, and a majority of them were government employees. However, Bancec points to appointment of the board of directors by the government as a typical feature of a government instrumentality. 462 U.S. at 624, 103 S.Ct. at 2599.
Even assuming that the evidence summarized above might reasonably be interpreted as supporting the allegation that Peru participated in Minpeco's major policy decisions, these factors have only limited legal significance. Clearly, any sole shareholder has a strong legitimate interest in the major decisions of a wholly-owned corporation. For the purposes of establishing an alter ego relationship the more significant question is whether the government exercised day-to-day control over the instrumentality's operations. See Baglab Ltd. v. Johnson Matthey Bankers Ltd., 665 F. Supp. 289, 294-97, 297 (S.D.N.Y.1987) (declining to find alter ego relationship between Bank of England and temporarily nationalized bank sufficient to overcome Bancec presumption where plaintiffs failed to show that the Bank of England "exercised general control over the day-to-day activities of [the second bank] such that [the second bank] might be considered its agent"); cf. Bellomo v. Pennsylvania Life Co., 488 F. Supp. 744, 745 (S.D.N.Y.1980) (rejecting plaintiff's contention that defendant corporation would be considered the alter ego of its parent corporation for jurisdictional reasons, because "[o]nly day to day control by the parent so complete that the subsidiary is, in fact, merely a department of the parent,' will constitute the requisite control") (citation omitted).
Defendants also argue that Minpeco's allegedly inadequate recordkeeping is relevant to a determination that Minpeco was Peru's alter ego. Defendants rely on the deposition testimony of a Peruvian minister of government, Pedro-Pablo Kuczynski, who expressed the view that the financial records kept by Minpeco and other Peruvian governmental corporations were in some respects inadequate,[15] as well as testimony by Minpeco employees allegedly indicating that Minpeco kept inadequate hedging and inventory records.[16] This evidence, even drawing all inferences in favor of defendants as the non-moving parties, is simply not relevant to the alter ego issue. The proposition of "inadequate recordkeeping" as a factor for disregarding the corporate entity is significant only as evidence of a "shell" corporation which has no need for business records because it does no business and exists only as a sham. See, e.g., Labadie Coal Co. v. Black, 672 F.2d 92, 97-98 (D.C.Cir.1982). It is undisputed that Minpeco was and is an active, real business entity which keeps extensive corporate records of various activities, even if they may be inadequate in some respects. In *436 sum, whether Minpeco kept its records in poor condition has no legal significance on this issue.
Defendants argue that Article 85 of Minpeco's Articles of Incorporation, in effect from 1975-1981, which states that Minpeco "shall be dissolved by express mandate of the law upon request of the Ministry of Commerce,"[17] is a factor which supports their single entity theory. Defendants argue that Article 85 tends to show that Minpeco did not have a limited liability relationship with Peru because "[t]he ultimate means available of limiting liability available to the owner of the corporation is its liquidation."[18] It is true that Bancec states that for governmental corporations as well as for private ones, "[l]imited liability is the rule, not the exception." 462 U.S. at 625-26, 103 S.Ct. at 2599-2600. However, it cannot be reasonably concluded that this provision, which merely states that Minpeco, which was created by its owner Peru through passage of a statute, can only be dissolved through passage of a statute, has any de facto legal significance on the alter ego issue. It is also noted that the Letelier court declined to pierce the corporate veil despite a finding that Chile also had the power to decree LAN's dissolution. 748 F.2d at 794.
Defendants contend that the fact that Minpeco was subject to Peru's austerity regulations which required, inter alia, approval for foreign travel, further supports a showing of Peru's total domination over Minpeco. However, Bancec describes the typical governmental instrumentality as "often ... not subject to the same budgetary and personnel requirements with which government agencies must comply," 462 U.S. at 624, 103 S. Ct. at 2599, which hardly suggests that a government corporation which is subject to budgetary requirements is abnormal in any significant way.
Defendants argue that evidence that Minpeco's declared capital was only five to ten percent of its legal capital[19] also supports their theory because undercapitalization is a factor to be considered in disregarding corporate entity. Inadequate capitalization is considered as a factor in piercing the corporate veil because:
[i]f a corporation is organized and carries on a business without substantial capital in such a way that the corporation is likely to have insufficient assets available to meet its debts, it is inequitable that the stockholders should set up such a flimsy organization to escape personal liability.
1 Fletcher Cyclopedia of Corporations § 44.1 at 528 (perm ed. 1983). In this case, it is undisputed that Minpeco always had sufficient capital to pay its creditors, even during its financial crisis of 1979-1980, that Minpeco never defaulted, and that it operated at a profit until 1979-1980. Hence, evidence of Minpeco's low capitalization is not significant to the issue at hand.
Finally, defendants argue that a 1981 change in Minpeco's legal status supports an inference that prior to 1981 Minpeco and Peru were not legally separate. It is undisputed that in 1981, Minpeco, along with all the other Peruvian government instrumentalities, was converted from a public corporation to a state-owned corporation subject to private law.[20] Minister Kuczynski testified on deposition that he agreed that the purpose of this policy was "to create a greater degree of separation between the government and entities like Minpeco."[21] However, this change in Minpeco's legal status under Peruvian law does not logically lead to a negative inference that prior to 1981 Minpeco was Peru's alter ego, nor is it of more than limited pertinence to the analysis required by Bancec.
In sum, it is undisputed that Peru never violated Minpeco's articles of incorporation *437 or by-laws and that Minpeco was not created or used by the Peruvian government to perpetrate a fraud.[22] Although defendants have pointed to evidence giving rise to the reasonable inference that Minpeco and Peru have a close relationship and that their interests are aligned, these features typify the relationship between all government instrumentalities and their parent governments. Such evidence, particularly in the absence of abuse, fraud or injustice, is legally insufficient to overcome the presumption of separateness set forth in Bancec. As in Letelier, defendants have made no showing that Minpeco's "separate status was established to shield its owners from liability for their torts" or that Peru "ignored ordinary corporate formalities." 748 F.2d at 794. Here, too, it is concluded that defendants have failed to demonstrate that there is sufficient evidence of record as to Minpeco's relationship with Peru that would "add up to anything that resembles the abuses in the decisions cited in Bancec." Id.
2. Centromin
Dale Furnish, defendants' expert on the single entity theory, has testified on deposition that he has "no opinion" as to whether Centromin is separate from Peru, and that he has not studied Centromin's by-laws or organic structure.[23] Defendants' only significant argument is that a jury could reasonably conclude that Centromin was Peru's alter ego on the basis of a 1983 Peruvian Supreme Court opinion voiding an arbitration agreement between Centromin and private miners on the ground that "it is not possible to distinguish, as is claimed, the stock assets of the State from the assets of its company CENTROMIN PERU."[24] However, a legal determination of the Peruvian Supreme Court, which does not depend on evidence of fraud, injustice, or even excessive intrusion by Peru in Centromin's business affairs is insufficient by itself to allow a reasonable jury to find for defendants on the single entity theory as to Centromin.
3. Banco Central de Reserva
Defendants have marshalled little evidence in support of their claim that the corporate veil should be pierced as to the BCR. Defendants merely point out the undisputed facts that the BCR is state-owned, that its board is largely appointed by the government, and that the BCR loaned physical silver to Minpeco in 1979-1980 and participated in a loan to Minpeco by another bank to cover Minpeco's losses due to margin payments and the costs of closing its futures positions. This evidence is insufficient to allow a reasonable conclusion under Bancec that Peru excessively dominated the BCR and that the BCR was Peru's alter ego.[25]
* * *
In conclusion, Minpeco's motion for partial summary judgment on defendants' single *438 entity theory is granted. It is so ordered.
NOTES
[1] Defendants' Memorandum in Opposition to Minpeco's Motion for Partial Summary Judgment On Defendants' Single Enterprise Theory at 19-20 (Jan. 25, 1988).
[2] Id. at 2-3.
[3] Defendants' Memorandum in Opposition at 2.
[4] This decision will not separately address the argument raised by ACLI International Commodity Services, Inc. in its Additional Memorandum of Defendant ACLI International Commodity Services, Inc., In Opposition to Minpeco's Summary Judgment Motion on the Single Entity Theory at 1-2, that "quite apart from traditional standards for disregarding the corporate form, profits and losses must be offset here because Minpeco and the government-owned mining companies were operating units of a single tripartite enterprise headed by the government, and for which Minpeco (whether regarded or not regarded as a separate corporation) served as the marketing agent." It is noted that "[t]he test for determining whether a corporation is acting as an agent for a related corporation is the same as the test imposed under the doctrine of piercing the corporate veil." Kashfi v. Phibro-Salomon, Inc., 628 F. Supp. 727, 735 (S.D.N.Y.1986); see also Brunswick Corp. v. Waxman, 459 F. Supp. 1222, 1229 (E.D.N.Y. 1978) (discussing limitations of agency theory), aff'd, 599 F.2d 34 (2d Cir.1979).
[5] Defendants' Memorandum in Opposition at 12 (Jan. 25, 1988).
[6] Defendants' Memorandum in Opposition at 12.
[7] Both parties primarily cite cases decided under New York law of corporations although, of course, this is a federal action involving a Peruvian corporation. The Bancec court considered the question of which body of law determines the effect to be given to a governmental entity's separate juridical status and concluded that "the principles governing this case are common to both international law and federal common law, which in these circumstances is necessarily informed both by international law principles and by articulated congressional policies." 462 U.S. at 623, 103 S.Ct. at 2598. The Bancec court cited only one case to illustrate its statement that a corporation could be so dominated by its parent corporation that in essence a principal-agent relationship would develop. In that case, Labor Board v. Deena Artware, Inc., 361 U.S. 398, 403-04, 80 S. Ct. 441, 443-44, 4 L. Ed. 2d 400 (1960), the Supreme Court articulated the following test:
`Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent. Where control is less than this, we are remitted to the tests of honesty and justice.' That is not a complete catalogue. The several companies may be represented as one. Apart from that is the question whether in fact the economic enterprise is one, the corporate forms being largely paper arrangements that do not reflect the business realities. One company may in fact be operated as a division of another; one may be only a shell inadequately financed; the affairs of the group may be so intermingled that no distinct corporate lines are maintained. These are some, though by no means, all, of the relevant considerations, as the authorities recognize. (citation omitted) (footnotes omitted).
These criteria do not differ in any material way from those in the cases cited by the parties.
[8] The Letelier court also concluded that the district court had improperly "found" facts concerning LAN's status as a sanction for Chile's failure to comply with discovery. 748 F.2d at 795 n. 2. However, the Court of Appeals' decision on the Bancec issue was clearly an independent ground for reversal which would stand even if the facts had been properly found. Id. at 794-95.
[9] Defendants argue that it is unnecessary to establish independently that the separate legal status of Centromin and BCR should be disregarded, because defendants' proof that Minpeco is Peru's agent consists in part of proof of Peru's "cradle-to-grave" mining sector, and "[o]nce that has been established, the jury may reasonably infer that all the state-owned corporations in the mining sector ... should be treated as a single enterprise for the purpose of determining the quantum of loss incurred by Minpeco." Defendants' Brief in Opposition at 37. However, this argument puts the cart before the horse: it would not appear to be possible for a reasonable jury to conclude that Centromin and BCR are part of such a single enterprise until it has first concluded that the corporate veil shielding these enterprises must be pierced. The distinction is not crucial, however, given the conclusion that defendants have failed to establish that there is a sufficient evidence of record to allow a reasonable jury to conclude that Peru has engaged in activity justifying the piercing of the corporate veil even as to Minpeco.
[10] Exhibit 21 to Affidavit of Aaron Rubenstein in Support of Defendants' Memorandum in Opposition to Minpeco's Motion for Partial Summary Judgment on Defendants' Single Enterprise Theory ("Defendants' Exhibits"), CFTC Statement of Reporting Trader.
[11] Defendants' Exhibit 17, Passaro Deposition at 28-31.
[12] Exhibit 12 to Minpeco's Reply Memorandum in Support of its Motion for Partial Summary Judgment on Defendants' Single Enterprise Theory ("Minpeco Reply Exhibits"), Passaro Deposition at 31-33.
[13] Defendants' Exhibit 22, Ministerial Resolution.
[14] Minpeco Reply Exhibit 11, Exchange Resolution.
[15] Defendants' Exhibit 11, Kuczynski Deposition at 58, 60.
[16] Defendants' Exhibit 17, Passaro Deposition at 419-21.
[17] Defendants' Exhibit 23, Minpeco Articles of Incorporation, Article 85.
[18] Defendants' Brief in Opposition at 30.
[19] Defendants' Exhibit 17, Passaro Deposition at 289-90.
[20] Defendants' Exhibit 29, Legislative Decree No. 216.
[21] Defendants' Exhibit 11, Kuczynski Deposition at 106.
[22] Defendants' Statement of Material Facts Related to Defendants' Single Enterprise Theory As to Which There Exists a Genuine Issue to Be Tried, Response to Plaintiff's Statement of Undisputed Facts at ¶¶ 10, 15.
[23] Exhibit 4 to Minpeco's Memorandum in Support of its Motion for Partial Summary Judgment on Defendants' Single Entity Theory ("Minpeco Exhibits"), Furnish Deposition at 207-08, 256.
[24] Defendants' Exhibit 34, Translation of Centromin Case at 13-14.
[25] As a final note, neither party has brought to the court's attention any evidence on the financial impact of the 1979-1980 silver crisis on Centromin and BCR: whether these entities experienced net gains or losses, or, if they experienced gains due to the increase in value of their physical silver, whether this gain outweighed Minpeco's alleged losses. Each side argues that the other side bears the burden of proof on this issue. I concluded in the December 22, 1988 opinion on damages in this case that Minpeco bears the burden of proving the offset based on its own physical silver, because it bears the burden of proving damage as part of its antitrust claim. Minpeco, S.A. v. ContiCommodity Services, Inc., 676 F. Supp. 486, 490 (S.D.N.Y. 1987). Here, however, it is clearly defendants' burden to pierce the corporate veil, see, e.g., Brunswick Corp. v. Waxman, 459 F. Supp. 1222, 1229 (E.D.N.Y.1978) and it is logical to conclude that it would also be defendants' burden to prove the resulting offset as a defense to Minpeco's damage claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4151568/ | J-S12029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGEL ROSA
Appellant No. 1503 MDA 2016
Appeal from the PCRA Order August 31, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001564-2011
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 09, 2017
Angel Rosa appeals pro se from the order, dated August 30, 2016, and
entered August 31, 2016, in the Court of Common Pleas of Lebanon County,
that dismissed as untimely his third petition filed pursuant to the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Rosa challenges his sentence as “illegal and unconstitutional.” 1 Based upon
the following, we affirm.
On April 25, 2012, the trial court sentenced Rosa to an aggregate
sentence of 27 to 55 years’ imprisonment, after Rosa entered an open guilty
plea to attempted murder, two counts of aggravated assault, possession of a
____________________________________________
1
Rosa’s Brief at 3.
J-S12029-17
firearm prohibited, and receiving stolen property.2, 3 Rosa did not file a post
sentence motion or direct appeal. Rosa filed his first PCRA petition on May
14, 2012. Counsel was appointed, and filed an amended petition on June
24, 2013. A hearing was held on July 1, 2013, and the PCRA court denied
the petition on October 30, 2013. This Court affirmed the PCRA court’s
denial of relief, and the Pennsylvania Supreme Court denied allowance of
appeal on December 31, 2014. Commonwealth v. Rosa, 106 A.3d 168
(Pa. Super. 2014) (unpublished memorandum), appeal denied, 106 A.3d
725 (Pa. 2014).
Rosa filed a second PCRA petition on April 6, 2015.4 The PCRA court
dismissed the petition without a hearing on May 8, 2015. On appeal, this
Court, by judgment order, affirmed the PCRA court. See Commonwealth
____________________________________________
2
18 Pa.C.S. §§ 901(a); 2702(a)(1), (a)(4); 6105(a)(1); and 3925(a),
respectively.
3
Rosa was sentenced to 20 to 40 years’ imprisonment on the attempted
murder conviction, a concurrent term of two and one-half to six years’
imprisonment on the conviction for one count of aggravated assault, a
consecutive term of five to ten years’ imprisonment for persons not to
possess firearms, and a term of two to five years’ imprisonment on the
conviction for receiving stolen property, to run consecutive to the sentence
imposed on the conviction for persons not to possess firearms.
4
As this Court noted in Rosa’s prior PCRA appeal, under the prisoner
mailbox rule, Rosa’s second PRCA petition is deemed to have been filed on
April 2, 2015, the date of the postmark on the envelope mailed from prison.
See Commonwealth v. Rosa, 2016 Pa. Super. Unpub. LEXIS 1508, 2016
WL 2611763 (Pa. Super. 2016).
-2-
J-S12029-17
v. Rosa, 2016 Pa. Super. Unpub. LEXIS 1508, 2016 WL 2611763 (Pa.
Super. 2016).
Rosa filed the present petition on May 19, 2016. The PCRA court, on
August 18, 2016, issued Pa.R.Crim.P. 907 notice of intent to dismiss without
a hearing, and dismissed the petition by order dated August 30, 2016, and
entered August 31, 2016. This appeal followed, in which Rosa contends,
inter alia, he was sentenced based on a prior record score of “REFEL” [sic],5
and prior counsel was ineffective in failing to raise this issue.6 See Rosa’s
Brief at V.
____________________________________________
5
“RFEL” is the acronym for “Repeat Felony 1/Felony 2 Offender Category” in
the Pennsylvania Sentencing Guidelines. See 204 Pa. Code § 303.4(a)(2).
6
Specifically, Rosa presents the following questions:
Was the Honorable Judge John C. Tylwalk supplied a P[r]e-
Sentence Investigation Report that was erroneously calculated?
....
Was [Rosa] sentenced to an enhanced and extremely harsh term
of imprisonment as a “REFEL” as a result of erroneously
calculated prior record score (relating to out-of-state
convictions) (New York) wherein [Rosa] actually has no past
convictions equaling an F1 or F2, therefore, since the court is to
consider only F1 or F2 felonies, [Rosa] would have none to
consider?
Was [Rosa] subjected to Ineffective Assistance of Trial Counsel
for their failure to raise, challenge, or address the issues and
concerns clearly visible and mentioned throughout this brief?
(Footnote Continued Next Page)
-3-
J-S12029-17
“Our review of a PCRA court’s decision is limited to examining whether
the PCRA court’s findings of fact are supported by the record, and whether
its conclusions of law are free from legal error.” Commonwealth v. Cox,
146 A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply
to all PCRA petitions, regardless of the nature of the individual
claims raised therein.
Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).
A PCRA petition must be filed within one year of the date the judgment
of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Rosa’s judgment
of sentence became final in 2012. See Commonwealth v. Rosa, 2016 Pa.
Super. Unpub. LEXIS 1508, 2016 WL 2611763 (Pa. Super. 2016) (stating
_______________________
(Footnote Continued)
Was [Rosa] sentenced to a term of imprisonment exceeding the
lawfully allowed maximum term of 20-(twenty) years as an FI
[felony of the first degree], wherein the [p]rior record score was
portrayed inaccurately, to deem [Rosa] as a “REFEL” offender?
Rosa’s Brief, at V. Rosa also raises another issue — “Did Rosa suffer
wrongfully [sic] a conviction for Receiving Stolen Property wherein the
alleged property stolen was not reported as being stolen until after the fact?”
Id. However, as this issue was not raised in Rosa’s present PCRA petition
nor in his response to the PCRA court’s Rule 907 notice, it is waived. See
Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007) (noting that
issues not raised in a PCRA petition are waived and cannot be considered for
the first time on appeal).
-4-
J-S12029-17
Rosa’s judgment of sentence became final on May 25, 2012). Therefore, the
present petition, filed in 2016, is patently untimely.
The PCRA provides that an otherwise untimely petition is not time-
barred if a petitioner pleads and proves the applicability of one of three
time-for-filing exceptions: (1) interference by government officials, (2)
newly discovered evidence, or (3) a newly-recognized constitutional right
which had been applied retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Any petition invoking one of these exceptions must be filed “within 60 days
of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Rosa does not specifically invoke any of the statutory exceptions.
Rosa asserts in his brief that by virtue of his receipt of the Presentence
Investigation Report (PSI) after correspondence with the PCRA judge on
April 28, 2016, his petition, filed May 19, 2016, meets the “newly found
evidence requirement.”7 However, the information in the PSI was available
to Rosa at the time of sentencing, and therefore does not satisfy the newly
discovered evidence exception. See 42 Pa.C.S. § 9545(b)(1)(ii).
Further, although Rosa cites the United States Supreme Court
decision, Alleyne v. United States, 133 S. Ct. 2151 (2013)8 (holding that
any fact other than a prior conviction that triggers a mandatory minimum
____________________________________________
7
Rosa’s Brief at 4.
8
Rosa’s Petition/Response for Allowance of Appeal, 8/29/2016, at ¶3; Rosa’s
Brief at 3.
-5-
J-S12029-17
sentence must be found by a jury beyond a reasonable doubt), his petition
does not satisfy the newly-recognized constitutional right exception, 42
Pa.C.S. 9545(b)(1)(iii). Specifically, (1) Alleyne’s holding does not apply
retroactively to cases on collateral review where, as here, the petitioner’s
judgment of sentence had already become final, see Commonwealth v.
Washington, 142 A.3d 810 (Pa. 2016); and (2) it appears that Rosa’s
sentence does not involve a mandatory minimum sentence. Accordingly, we
affirm the PCRA court’s dismissal of Rosa’s third PCRA petition.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2017
____________________________________________
9
Even if Rosa could overcome the PCRA time bar, it bears note that Rosa’s
claim that the trial court erred in calculating his prior record score is a
challenge to the discretionary aspects of sentencing. See Commonwealth
v. Spenny, 128 A.3d 234, 241 (Pa. Super. 2015). This Court has held that
“[c]hallenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa.
Super. 2007).
-6- | 01-03-2023 | 03-09-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5903395/ | Order, Supreme Court, New York County (Louis B. York, J.), *515entered November 9, 2011, which granted defendant Richard Jefferys’ motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.
Supreme Court properly determined that plaintiff was a limited public figure because, through her publication of countless articles, she voluntarily injected herself into the controversial debate on whether HIV causes AIDS with a view toward influencing the debate (see Krauss v Globe Intl., 251 AD2d 191, 192 [1st Dept 1998]), and “projected] [her] name and personality before . . . readers of nationally distributed magazines . . . to establish [her] reputation as a leading authority” in this area (Maule v NYM Corp., 54 NY2d 880, 882-883 [1981]). The court also properly concluded that the subjects of HIV/AIDS, plaintiff s journalism, and her receipt of an award for her journalism fell “within the sphere of legitimate public concern” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). Indeed, the record established that plaintiff was a contentious figure within the traditional HIV/AIDS community.
Jefferys met his burden of demonstrating that plaintiff could not show by clear and convincing evidence that he made the challenged statements with actual malice or with gross irresponsibility (see Huggins v Moore, 94 NY2d 296 [1999]; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196 [1975], supra). The record was devoid of evidence that Jefferys acted with knowledge that his statements were false or with reckless disregard for the truth, or that he did not follow the standards of information gathering employed by reasonable persons. Jefferys sufficiently explained that his statement about plaintiffs journalism was based on his expertise and research on HIV/ AIDS for many years, on an article signed by prominent experts in the field, as well as on the many articles in the record which critiqued plaintiffs 2006 article as being filled with misquotes or misrepresentations. Jefferys also provided documentation to support why he believed what he wrote about the plaintiff was true and compared in detail plaintiffs journalism to the articles and studies she cited and explained why he believed her work to contain misrepresentations.
In opposition, plaintiff failed to raise a triable issue of fact. Her effort to establish that her work does not contain misquotes or misrepresentations is immaterial because even if plaintiff were correct about her work, she can point to no evidence that would establish actual malice or gross irresponsibility (Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39 [1987] [“(falsity and actual malice are distinct concepts”]). Similarly, plaintiff’s assertion that Jefferys was biased against her or bore her ill will *516does not aid her cause (see Harte-Hanks Communications, Inc. v Connaughton, 491 US 657, 666 [1989]). Moreover, there is no reason to offer less protection to the contested statement because it was made via an Internet communication (see Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 43-44 [1st Dept 2011]).
Supreme Court was also correct in finding that the use of the word “liar” in the contested statement was not actionable (see Ram v Moritt, 205 AD2d 516 [2d Dept 1994]; see also Steinhilber v Alphonse, 68 NY2d 283, 294 [1986]). The full content of the statement, including its tone and apparent purpose, and the broader context of the statement and surrounding circumstances leads to the conclusion that what was being read was “likely to be opinion, not fact” (see Thomas H. v Paul B., 18 NY3d 580, 584 [2012] [internal quotation marks omitted]; see Immuno AG. v Moor-Jankowski, 77 NY2d 235, 254 [1991], cert denied 500 US 954 [1991]).
Supreme Court appropriately resolved the case through summary judgment because the issues can be determined by the objective proof in the record (see Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 354 [2009]; Karaduman v Newsday, Inc., 51 NY2d 531, 545 [1980]), and no additional discovery was necessary or warranted to resolve the motion.
We have considered plaintiffs remaining contentions and find them unavailing. Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. [Prior Case History: 33 Misc 3d 1218(A), 2011 NY Slip Op 51966(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903396/ | In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Rader, J.), dated June 10, 1986, which granted the plaintiffs motion to set aside a verdict in its favor as against the weight of the evidence and granted the plaintiff a new trial on the issue of liability.
Ordered that the order is reversed, with costs, the plaintiff’s motion to set aside the verdict is denied, and the verdict is reinstated.
The plaintiff Donald Green seeks to recover damages from the defendant the City of New York for injuries he sustained on February 4, 1982, when a portion of the roadway in front of 953 53rd Street in Brooklyn, New York, collapsed beneath the ambulance in which he was an occupant.
The case was tried on the issue of liability and the jury returned a verdict in favor of the city. The court thereafter set aside the verdict as against the weight of the evidence and granted a new trial. The city now appeals to this court seeking reinstatement of the jury verdict.
The determination of whether to set aside a verdict as against the weight of the evidence is not a question of law; rather, it "requires a discretionary balancing of many factors” (Nicastro v Park, 113 AD2d 129, 133). The proper standard to be applied by a trial court in making such a determination is to set aside a verdict only when "[the] jury could not have reached [the verdict] on any fair interpretation of the evidence” (Nicastro v Park, supra, at 135). In the application of this standard the trial court should keep in mind that "[a] preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a *677favorable jury verdict” (Nicastro v Park, supra, at 133). This precaution is particularly pertinent in tort actions: "because the clash of factual contentions is often sharper and simpler in those matters and the jury need not find that a defendant has prevailed by a preponderance of the evidence but rather may simply conclude that the plaintiff has failed to meet the burden of proof requisite of establishing the defendant’s culpability” (Nicastro v Park, supra, at 134). Thus, if the jury’s resolution of the controversy in favor of the defendant is grounded upon a fair interpretation of the evidence, "that finding should be sustained * * * in the absence of some other reason for disturbing it in the interest of justice” (Nicastro v Park, supra, at 134).
Applying these principles to the instant case, we conclude that it was an improvident exercise of discretion by the Supreme Court, Kings County, to set aside the verdict and order a new trial.
The plaintiff’s theory in this case was that the city was aifirmatively negligent in creating the defective condition by an improper repair which caused the roadway to collapse. Since the claimed negligence on the part of the city was affirmative in nature, notice was unnecessary. The affirmative negligence which the plaintiff attempted to prove was that prior to the accident, the city had repaired the roadway in an improper manner causing the area in question to collapse under the wheels of the vehicle in which plaintiff was an occupant. The key testimony on this issue came from Oscar Perl, the owner of the building at 953 53rd Street and Joseph Balkan, a licensed master plumber.
Mr. Perl testified that in June 1981 approximately seven months before the accident, he found a notice affixed to his door, purportedly from a city agency, the precise identity of which he could not recall, to the effect that there was a water main break in the line leading to his house and that it had to be repaired. Mr. Perl hired Mr. Balkan who did the repair work after making a cut in the roadway. Mr. Balkan testified that he paid someone else to do the repaving after the water main repair work was finished. After Mr. Perl noticed that the patched portion of the roadway was sinking, Mr. Balkan came back and fixed it. When the roadway started sinking for a second time, Mr. Balkan advised Mr. Perl to call the city. Mr. Perl testified that he called the city and was told that the repairs would be made. He could not remember the department or the name of the person he called. Within three days after the call, the roadway was repaired. About three months *678later the roadway fell in again and Mr. Perl called the Department of Highways and in a few days the roadway was repaired. Mr. Perl did not see the repairs made nor did he know who actually performed the work.
Although Mr. Balkan testified that he obtained a permit from the city for every job that he performed in 1981, he could not find his records for this particular job. Moreover, the city records, produced pursuant to subpoena, did not indicate that a permit had been obtained for this work. Additionally, the plaintiff’s own experts conceded that while a permit is required to make a cut in the roadway, plumbers sometimes do such work without applying for a permit.
The plaintiff contends that by this circumstantial evidence, he established that the city did the defective repair work which led to the collapse of the roadway. We hold that the plaintiff proved a prima facie case, sufficient to establish a jury question, as to whether the city performed the repair work which led to the collapse of the roadway. However, based on a fair interpretation of the same evidence, the jury could have found otherwise.
Initially, we find that the circumstantial evidence adduced by the plaintiff is subject to a reasonable interpretation that someone other than the city did the work on the roadway in question, and, therefore, the court erred in charging the jury on the doctrine of res ipsa loquitur. The plaintiff failed to establish the requisite "exclusive control” on the part of the city in the repair of this street (see, Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227; De Witt Props. v City of New York, 44 NY2d 417) and the jury should not have been instructed on this doctrine. We note that notwithstanding the obvious benefit to the plaintiff of an erroneous res ipsa loquitur charge, the jury found in favor of the city.
More importantly, however, because of the equivocal nature of the testimony of Mr. Perl and Mr. Balkan concerning the involvement of the city in the work done on the roadway, the jury could have reasonably concluded that the city’s employees were not aware of the work that was done and that the city did not do the work itself. Thus, the jury’s verdict in this case finding the defendant not negligent could have been reached by a fair interpretation of the evidence and should not have been set aside. Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903397/ | In an action to recover $1,350 as compensa*679tion for legal services, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered February 2, 1987, which denied that branch of his motion which was to strike the note of issue and granted that branch of his motion which was for an order directing the plaintiff to respond to a combined "Demand for Bill of Particulars/Interrogatories” only with respect to items Nos. 1, 9, 10, 11 and 12, and an order of the same court, also entered February 2, 1987, which sua sponte transferred the action to the City Court of the City of New Rochelle.
Ordered that the order which denied that branch of the motion which was to strike the plaintiff’s note of issue is modified by deleting the provision thereof which denied that branch of the motion, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed; and it is further,
Ordered that the order transferring the matter to the City Court of the City of New Rochelle is reversed; and it is further,
Ordered that the appellant is awarded one bill of costs.
In August 1986 the plaintiff, a professional corporation having its place of business in New Rochelle (see, UCCA 213 [b]), commenced this action in the Supreme Court, Westchester County, to recover $1,350 as compensation for legal services allegedly performed for the defendant, a resident of New Jersey. The defendant was personally served with process in New Jersey pursuant to CPLR 313. He purportedly served his verified answer by mail on September 2, 1986. However, the plaintiff apparently did not receive the answer prior to serving and filing a note of issue on September 16, 1986, as evidenced by the fact the plaintiff left blank the space on the note of issue for recording the date issue was joined. By notice of motion dated November 28, 1986, the defendant moved pro se to strike the case from the calendar on the ground he had not had an opportunity to conduct discovery prior to service of the note of issue, and requested an order directing the plaintiff to respond to a combined demand for a "Bill of Particulars/ Interrogatories”. While this motion was pending, a pretrial conference was held, at which time the Supreme Court indicated an intention to transfer the action to the City Court of the City of New Rochelle. The defendant opposed the transfer on the ground the City Court of the City of New Rochelle lacked personal jurisdiction over him. In the orders appealed from, the Supreme Court (1) denied the defendant’s motion to strike the note of issue, but directed the plaintiff to respond to *680items Nos. 1, 9, 10, 11 and 12 of the combined demand for a bill of particulars and interrogatories, and (2) sua sponte transferred the action to the City Court of the City of New Rochelle, pursuant to NY Constitution, article VI, § 19.
NY Constitution, article VI, § 19 authorizes the Supreme Court to transfer an action not within its exclusive jurisdiction, without the consent of the parties (see, Hesse v Hrubsa, 55 Misc 2d 610, 611, appeal dismissed 57 Misc 2d 913; Haas v Scholl, 68 Misc 2d 197; Alacqua v Baudanza, 110 Misc 2d 774, 778), directly to a court of limited jurisdiction. However, such a transfer is conditioned on the provision that the lower court "has jurisdiction over the classes of the persons named as parties”. "Classes of persons” as used in this constitutional provision encompasses those persons over whom the lower court might have obtained jurisdiction had the action been initially commenced there (see, Hesse v Hrubsa, supra; Rochester Tel. Corp. v Kirchner, 97 Misc 2d 725; Mosera v Knoblauch & Sons, 145 NYS2d 344; Friedman v Strand, 203 Misc 170; 1 Weinstein-Korn-Miller, NY Civ Prac H 325.18). The long-arm jurisdiction of the City Courts (see, UCCA 404 [a]) is not as broad as that of the Supreme Court (see, CPLR 302), because service of process is restricted to the home county or an adjoining county (see, NY Const, art VI, § 1 [c]; UCCA 404 [b]). Although the City Court of the City of New Rochelle would have had jurisdiction over the subject matter of the instant action, service of process on the defendant in New Jersey could not have secured personal jurisdiction by the City Court of the City of New Rochelle over the defendant. Consequently, the Supreme Court erred in transferring the action to the City Court of the City of New Rochelle, in the absence of the defendant’s consent to personal jurisdiction (see, Rochester Tel. Corp. v Kirchner, supra; Mosera v Knoblauch & Sons, supra). To permit such a transfer, over the defendant’s objection, would result in utilizing "the Supreme Court as a vehicle to enlarge the territorial jurisdiction of a [City C]ourt. The net effect would be to convert the Supreme Court into a processing agent for [City] Court cases—with all the necessary and concomitant judicial attention, clerical service and public expense; and to expand the jurisdiction of the [City] Court—so as to permit it to hear and determine causes beyond those set for it by [the State Constitution]” (Friedman v Strand, 203 Misc 170, 171-172, supra).
We also conclude that it was an improvident exercise of discretion to deny the defendant’s motion to strike the note of issue, albeit the motion was untimely and the defendant’s *681excuse does not adequately explain the entire period of delay. Upon reviewing the record, we find that the plaintiff prematurely served and filed a note of issue and statement of readiness prior to the expiration of the defendant’s time to serve an answer (see, CPLR 320 [a]). Clearly, this is not a situation where the defendant had an ample opportunity, but failed to complete discovery (cf., Gravina v First Presbyt. Church, 103 AD2d 819; Di Maria v Coordinated Ranches, 114 AD2d 397; Gerardi v Incorporated Vil. of Val. Stream, 111 AD2d 741). The defendant has demonstrated a need for discovery (see, Colella v Colella, 99 AD2d 794) and, under the unusual circumstances of this case, his motion papers suffice to show good cause for vacating the note of issue.
Lastly, we note that the defendant may not serve written interrogatories on the plaintiff and also demand a bill of particulars (see, CPLR 3130 [1]; Sassower v New York News, 101 AD2d 1020). The Supreme Court properly construed defendant’s demand as one for a bill of particulars. The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial with respect to a party’s claim (see, Matter of Reynolds, 38 AD2d 788). It is not intended as a means for disclosure of evidence or for the identification of witnesses (see, State of New York v Horsemen’s Benevolent & Protective Assn., 34 AD2d 769; Bennett Excavators Corp. v Lasker Goldman Corp., 7 AD2d 1001). Since only items Nos. 1, 9, 10, 11 and 12 requested matter within the proper scope of a bill of particulars, the court properly directed the plaintiff to respond only to those items. Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903399/ | In an action to recover damages for personal injuries, etc., the defendant Emil George Sorensen appeals from an order of the Supreme Court, Suffolk County (Luciano, J.), dated June 19, 1987, which granted the plaintiffs’ motion to compel disclosure by directing him to comply with items Nos. 1, 2, 6, 12, 13 and 14 of the plaintiffs’ notice for discovery and inspection dated April 16, 1986, and directing him to appear for a further examination before trial.
Ordered that the appeal from so much of the order as granted that branch of the plaintiffs’ motion which was for a further examination before trial of the appellant is dismissed; and it is further,
Ordered that the order is otherwise modified, by deleting the provision thereof which directed the appellant to produce his 1984 and 1985 tax returns pursuant to item No. 1 of the *684plaintiffs’ notice for discovery and inspection; as so modified, the order is affirmed insofar as reviewed; and it is further,
Ordered that the plaintiffs are awarded one bill of costs, and the appellant’s time to comply with the plaintiffs’ notice for discovery and inspection, as modified by this court, is extended until 30 days after service upon him of a copy of this decision and order, with notice of entry.
No appeal lies as of right from an order determining an application made to review objections made at an examination before trial (see, e.g., Ielovich v Taylor Mach. Works, 128 AD2d 676; Stoller v Moo Young Jun, 118 AD2d 637). The appellant failed to seek permission of this court for leave prior to perfecting his appeal. We will not now grant him leave to appeal from the granting of that branch of the plaintiffs’ motion which was for a further examination before trial of him (see, Sainz v New York Health & Hosps. Corp., 106 AD2d 500).
The Supreme Court, Suffolk County, and the parties to this appeal correctly recognize that the failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought, except as to material which is privileged under CPLR 3101 or as to requests which are palpably improper (see, e.g., Handy v Geften Realty, 129 AD2d 556; Sprague v International Business Machs. Corp., 114 AD2d 1025). It is undisputed that the appellant made no timely motion for a protective order. The appellant makes no claim of privilege but argues that the material requested is palpably improper. Except as to item No. 1 we disagree. Item No. 1 sought the appellant’s tax returns for 1984 and 1985. The plaintiffs’ rationale for seeking them was to demonstrate that the appellant was not a general contractor on the construction project where the injury-causing event occurred and, therefore, the owners of the property in question were not exempt from liability under Labor Law §§ 240 and 241. We find item No. 1 to be palpably improper as it seeks information of a confidential and private nature which does not appear relevant to the issues in the case (see, Matthews Indus. Piping Co. v Mobil Oil Corp., 114 AD2d 772; Briton v Knott Hotels Corp., 111 AD2d 62; Penn York Constr. Corp. v State of New York, 92 AD2d 1086). As to the remainder of the challenged items we agree with the Supreme Court that they are not palpably improper so as to permit review notwithstanding the appellant’s failure to challenge them in a timely fashion. Accordingly, the appellant was properly com*685pelled to respond to items Nos. 6, 12, 13 and 14 of the notice for discovery and inspection. Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903116/ | Appeal by the defendant from a *425judgment of the County Court, Suffolk County (Copertino, J.), rendered November 25, 1985, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient for the jury to find the defendant guilty of assault in the second degree (Penal Law § 120.05 [3]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
The court properly exercised its discretion in its Sandoval ruling. The acts constituting' petit larceny were probative of the defendant’s credibility and were not too remote in time.
We further hold that the court was correct in permitting the introduction of the field report prepared by Police Officer Ubert shortly after the incident. The defendant alleged that statements of a sprained neck appearing in the felony complaint, prepared several days later, were a recent fabrication. The field report was a prior consistent statement and there was no showing that Officer Ubert had any motive to falsify at the time it was made (see, People v McClean, 69 NY2d 426; People v Davis, 44 NY2d 269). Bracken, J. P., Weinstein, Rubin and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903117/ | Appeal by the defendant, as limited by his motion, from a resentence of the County Court, Suffolk County (Tisch, J.), imposed April 22, 1987, the resentence being two concurrent determinate terms of imprisonment of one year to be satisfied by 1,680 hours of community service within two years, upon his conviction of falsifying business records in the second degree (two counts), after a nonjury trial.
Ordered that the resentence is modified, on the law and as a matter of discretion in the interest of justice, by reducing the length of community service to 400 hours to be performed within a period of one year; as so modified, the resentence is affirmed.
Pursuant to Penal Law § 65.10 (2) (h), a court is vested with the discretionary power to require as a condition of probation or conditional discharge that the defendant "[pjerform services for a public or not-for-profit corporation, association, institution or agency”. A court may impose a sentence of conditional discharge if it determines after considering the *426nature and circumstances of the offense and the history, character and conditions of the defendant, that "neither the public interest nor the ends of justice would be served by a sentence of imprisonment” (see, Penal Law § 65.05 [1]). When a court imposes a sentence of a conditional discharge, the defendant is entitled to be released "with respect to the conviction for which the sentence is imposed without imprisonment or probation supervision but subject, during the period of conditional discharge, to such conditions as the court may determine” (Penal Law § 65.05 [2]).
Although the court, in the instance case, did not specifically utilize the phraseology "conditional discharge” during the sentencing proceeding, the sentence actually imposed was, for all practical purposes, tantamount to a conditional discharge. The defendant, pursuant to the court’s directives, was entitled to be released with respect to the misdemeanor charges for which he was found guilty, without institutional confinement, on the condition that he perform 1,680 hours of community service within a 24-month period. Since Penal Law article 65 permits a court to attach such a condition in discharge of a sentence of imprisonment, we conclude, contrary to the defendant’s contentions, that the sentencing court did not act in excess of its statutory powers when it directed the defendant to perform community service in lieu of imprisonment.
We find, however, that the length of time within which the defendant was directed to perform the community services, to wit, 24 months, was improper. Penal Law § 65.05 (2) provides that the court may direct that the defendant comply with certain conditions during the period of conditional discharge. Because the defendant was essentially sentenced to two concurrent terms of conditional discharge for a period of one year, the condition of community service attached thereto may not exceed a one-year term (see, People v Pabon, 119 AD2d 446, lv denied 67 NY2d 1055). Accordingly, we hereby modify the resentence by reducing the length of community service to 400 hours and direct that that service be performed within a period of one year. Bracken, J. P., Rubin, Eiber and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903118/ | Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Nastasi, J.), rendered July 9, 1985, convicting him of robbery in the third degree, grand larceny in the third degree, assault in the third degree, and petit larceny, upon a jury verdict, and imposing sentence.
*427Ordered that the judgment is affirmed.
The evidence when viewed in a light most favorable to the People was legally sufficient to support the defendant’s conviction (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932; People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
We reject the defendant’s contention that the evidence at trial was legally insufficient to establish that the complainant suffered "physical injury” in order to support a conviction of assault in the third degree (see, Penal Law § 120.00 [1]). Penal Law § 10.00 (9) defines "physical injury” as "impairment of physical condition or substantial pain”. We find that the various injuries described by the complainant, including her inability to use her thumb for several months subsequent to the attack by the defendant, were sufficient to meet the statutory threshold (see, People v Greene, 70 NY2d 860; People v Bogan, 70 NY2d 860).
The defendant has failed to preserve for appellate review his contention raised pro se that the jury verdict was repugnant, since the objection was not raised until the time of sentencing (see, People v Alfaro, 66 NY2d 985; People v Satloff, 56 NY2d 745, rearg denied 57 NY2d 674). Moreover, we do not find any merit to that contention.
Finally, we have considered the remaining contentions raised in the defendant’s pro se supplemental brief and find them to be without merit. Mollen, P. J., Brown, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903119/ | Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Rosenblatt, J.), rendered February 1, 1985, convicting him of robbery in the first degree (two counts) and robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant claims that the jury’s verdict is repugnant because it acquitted him of criminal possession of a weapon in the second and third degrees. Because the defendant did not raise this issue prior to the discharge of the jury the matter is not preserved for appellate review (see, People v Satloff, 56 NY2d 745, rearg denied 57 NY2d 674; People v Ahmedoff, 131 AD2d 683, lv denied 70 NY2d 708). In any event, after reviewing the court’s instructions to the jury as to both the *428robbery counts and the weapons possession counts, we find that the verdict is not inherently repugnant (see, People v Goodfriend, 64 NY2d 695; People v Tucker, 55 NY2d 1, rearg denied 55 NY2d 1039; People v Ahmedoff, supra). Mollen, P. J., Bracken, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903120/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered May 2, 1984, convicting him of assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).
The evidence adduced at the Wade hearing clearly supports the hearing court’s determination that an independent basis existed for each eyewitness’ in-court identification. The uncontradicted Wade testimony was that the two eyewitnesses observed the defendant immediately prior to the shooting for 15 to 20 minutes, at close range, in the light of a street lamp, as they conversed. The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress the complainant’s hospital identification of the defendant in view of the fact that the complainant knew the defendant prior to the shooting. Therefore, the showup procedure used was "merely confirmatory” so that the "issue of suggestiveness is not relevant” (see, People v Johnson, 124 AD2d 748, 749, lv denied 69 NY2d 713; People v Fleming, 109 AD2d 848).
We reject the defendant’s contention that the trial court erred in denying his request for further instructions on the identification issue (see, People v Whalen, 59 NY2d 273, 279; People v Smith, 100 AD2d 857, lv denied 62 NY2d 810; see also, People v Rodriguez, 130 AD2d 522, lv denied 70 NY2d 655).
Finally, the defendant was not entitled to a circumstantial evidence charge since the prosecution’s case consisted of direct as well as circumstantial evidence (see, People v Barnes, 50 NY2d 375; People v Bussey, 131 AD2d 494). Moreover, it is not *429necessary that the words "moral certainty” be used in a circumstantial evidence charge (see, People v Ford, 66 NY2d 428, 441; People v Gonzalez, 54 NY2d 729). Bracken, J. P., Weinstein, Rubin and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534851/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DISABILITY RIGHTS PENNSYLVANIA; : No. 83 MM 2020
SENIORLAW CENTER; SOUTHEAST :
ASIAN MUTUAL ASSISTANCE :
ASSOCIATION COALITION, INC. :
(SEAMAAC); SUZANNE ERB; THE :
BARRISTERS' ASSOCIATION OF :
PHILADELPHIA, :
:
Petitioners :
:
:
v. :
:
:
KATHY BOOCKVAR, IN HER CAPACITY :
AS SECRETARY OF THE :
COMMONWEALTH OF PENNSYLVANIA; :
AND JESSICA MATHIS, IN HER CAPACITY :
AS DIRECTOR OF THE BUREAU OF :
ELECTION SERVICES AND NOTARIES OF :
THE PENNSYLVANIA DEPARTMENT OF :
STATE, :
:
Respondents :
CONCURRING STATEMENT
JUSTICE WECHT FILED: May 15, 2020
I join the Court’s resolution of this matter. Although actual evidence of disruption
in the United States Postal Service’s mail delivery service may be probative of Petitioners’
constitutional claims, and would be relevant to a future challenge on similar grounds, the
instant request for emergency relief for the June 2, 2020 primary election is predicated
upon mere speculation about what may or may not occur with delivery operations within
the Commonwealth in several weeks’ time. While circumstances may change, the
possibility that votes may be suppressed due to late ballot delivery, as presently alleged,
is too remote at this time to constitute a cognizable injury.
I write separately to express my skepticism that a single chamber of our bicameral
legislature would have standing to intervene in an action of this nature. Pennsylvania
Senate President Pro Tempore Joseph B. Scarnati, III, and Senate Majority Leader Jake
Corman (collectively, “Senate Intervenors”), aver that they “have been duly authorized to
act in this matter by each of the members of the Senate Republican Caucus, which
constitutes a majority of the Senate as a whole.” Motion to Intervene, 5/6/2020, at
unpaginated 1. Speaker of the Pennsylvania House of Representatives Mike Turzai and
House Majority Leader Bryan Cutler (collectively, “House Intervenors”) similarly attest that
109 of the 203 members of the House have authorized their intervention. See Petition to
Intervene, 5/12/2020, at 1. Although both chambers’ intervenors reiterate those apparent
authorizations in their proposed preliminary objections and memoranda of law, they cite
no formal enactment by the House or Senate purporting to authorize such interventions.
That deficiency alone strikes me as problematic. Moreover, I am not confident that a
formal enactment would be dispositive as to whether they have standing to intervene in
the first place.
It is beyond dispute that “a State has standing to defend the constitutionality of its
statute[s].” Diamond v. Charles, 476 U.S. 54, 62 (1986). And the Commonwealth has
chosen to defend the instant mail voting statute by way of advocacy from the Department
of State. But our Rules of Civil Procedure also pertinently provide that, “[a]t any time
during the pendency of an action, a person not a party thereto shall be permitted to
intervene therein” if: “(3) such person could have joined as an original party in the action
or could have been joined therein; or (4) the determination of such action may affect any
legally enforceable interest of such person whether or not such person may be bound by
[83 MM 2020] - 2
a judgment in the action.” Pa.R.C.P. 2327(3)-(4).1 Whether the House and Senate
Intervenors have satisfied either of those criteria determines their eligibility to intervene.
This Court has examined at length the history of legislative standing, most recently
in Markham v. Wolf, 136 A.3d 134 (Pa. 2016). There we recognized that members of the
General Assembly, qua legislators, have standing to litigate in their official capacity “only
in limited circumstances.” Id. at 145.
Standing exists only when a legislator’s direct and substantial interest in his
or her ability to participate in the voting process is negatively impacted, or
when he or she has suffered a concrete impairment or deprivation of an
official power or authority to act as a legislator . . . . These are injuries
personal to the legislator, as a legislator. By contrast, a legislator lacks
standing where he or she has an indirect and less substantial interest in
conduct outside the legislative forum which is unrelated to the voting or
approval process, and akin to a general grievance about the correctness of
governmental conduct, resulting in the standing requirement being
unsatisfied.
Id. (citing Fumo v City of Phila., 972 A.2d 487 (Pa. 2009); Wilt v. Beal, 363 A.2d 876 (Pa.
Cmwlth. 1976) (en banc)) (cleaned up).2 But Markham’s thorough explication of the limits
of legislators’ standing need not be belabored here, because the House and Senate
1 The remainder of Rule 2327 permits intervention where “(1) the entry of a judgment
in such action or the satisfaction of such judgment will impose any liability upon such
person to indemnify in whole or in part the party against whom judgment may be entered;”
and where “(2) such person is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof.” Pa.R.C.P.
2327(1)-(2). Because the underlying action involves neither the imposition of liability nor
the disposition of property, these provisions plainly are inapplicable.
2 To the extent that this Court has agreed that individual legislators have standing
to bring or join suits, those circumstances largely have been confined to quo warranto
actions challenging the validity of certain appointments made by the Governor allegedly
without the Senate’s consent. In those cases, standing derived from the individual right
of each Senator to vote to confirm or reject nominees. See, e.g., Zemprelli v. Daniels,
436 A.2d 1165 (Pa. 1981); Stroup v. Kapleau, 313 A.2d 237 (Pa. 1973); cf. Frame v.
Sutherland, 327 A.2d 623 (Pa. 1974) (assuming, but not deciding explicitly, that three
members of the Senate could bring a suit related to the Governor’s appointment powers).
[83 MM 2020] - 3
Intervenors offer no argument that the present circumstances necessitate their
intervention.
Since Markham was decided, the Supreme Court of the United States has had
occasion to consider—and reject—the notion that a single chamber of a bicameral
legislature has standing to intervene in defense of a state law. In Virginia House of
Delegates v. Bethune-Hill, 587 U.S. ___, 139 S.Ct. 1945 (2019), the Court considered an
appeal brought by the Virginia House and its Speaker as intervenors in defense of
Virginia’s legislative districts—nearly a dozen of which had been struck down by a three-
judge District Court as racial gerrymanders in violation of the Fourteenth Amendment’s
Equal Protection Clause—after the Commonwealth declined to appeal the decision. Id.
at 1949-50. The Supreme Court held that the Virginia House, “as a single chamber of a
bicameral legislature, ha[d] no standing to appeal the invalidation of the redistricting plan
separately from the State of which it is a part.” Id. at 1950.
Central to the Court’s decision was the intervenors’ inability to “independently
demonstrate standing.” Id. at 1951. Although a State may “designate agents to represent
it in federal court,” id. (quoting Hollingsworth v. Perry, 570 U.S. 693, 710 (2013)), the
Commonwealth had not so designated the lower chamber of its General Assembly in the
matter. Compare id. at 1952 (“Virginia has thus chosen to speak as a sovereign entity
with a single voice.”), with Karcher v. May, 484 U.S. 72, 82 (1987) (concluding without
extensive explanation that “the New Jersey Legislature had authority under state law to
represent the State’s interests”). Rejecting the House’s assertion that it had “standing in
its own right” to pursue the appeal, the Court observed that it had
never held that a judicial decision invalidating a state law as unconstitutional
inflicts a discrete, cognizable injury on each organ of government that
participated in the law’s passage. The Court’s precedent thus lends no
support for the notion that one House of a bicameral legislature, resting
solely on its role in the legislative process, may appeal on its own behalf a
judgment invalidating a state enactment.
[83 MM 2020] - 4
Bethune-Hill, 139 S.Ct. at 1953. Because the Virginia Constitution “allocate[d]
redistricting authority to the ‘General Assembly,’ of which the House constitute[d] only a
part,” id., the fact that each chamber independently voted to adopt Virginia’s legislative
districts following the 2010 decennial census was irrelevant to standing considerations.
Significantly, the Court distinguished the Virginia House’s situation from that of the
Arizona Legislature in Arizona State Legislature v. Arizona Independent Redistricting
Commission, 576 U.S. ___, 135 S.Ct. 2652 (2015), “in which the Court recognized the
standing of the Arizona House and Senate—acting together—to challenge a referendum
that gave redistricting authority to an independent commission, thereby allegedly usurping
the legislature’s authority . . . over congressional redistricting.” Bethune-Hill, 139 S.Ct. at
1953 (emphasis in original). Thus, “[j]ust as individual members lack standing to assert
the institutional interests of a legislature,” id. at 1953 (citing Raines v. Byrd, 521 U.S. 811,
829 (1997) (holding that individual Members of Congress lacked standing to challenge
the Line Item Veto Act)), the Court concluded that “a single House of a bicameral
legislature lacks capacity to assert interests belonging to the legislature as a whole.” Id.
at 1953-54.
This Court previously has found the federal courts’ decisions on prudential
standing in the context of legislative interests to be “helpful.” Fumo, 972 A.2d at 500 n.5;
see id. at 500 (citing Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 253 (3d Cir.
2009) (rejecting Pennsylvania legislators’ standing to challenge “increased salaries for
state legislators” and others pursuant to “the General Assembly’s enactment of Act 44 [of
2005] in a sleight-of-hand manner during the dead of night”)). Although Bethune-Hill does
not bind this Court, I find it persuasive. As in Bethune-Hill, it appears that there is no
independent statutory authorization for the General Assembly to intervene here, let alone
[83 MM 2020] - 5
for either of its chambers, acting independently on behalf of their respective caucus
majorities, evidently without even consulting with their chambers’ full membership.
Like the Virginia House of Delegates, the House and Senate Intervenors have
“purported to represent [their] own interests,” Bethune-Hill, 139 S.Ct. at 1952, rather than
those of the Commonwealth. Id.; see also id. at 1953 (“Nowhere in its motion did the
House suggest it was intervening as agent of the State.”). This is not a case where they
allege that a power delegated to them by the Pennsylvania Constitution has been usurped
by a coordinate branch of government. Nor is it one where individual legislators can claim
that their rights as the people’s elected representatives within those legislative bodies
have been curtailed. See Robinson Twp. v. Commonwealth, 84 A.3d 1054 (Pa. 2014)
(per curiam). Our foundational Charter confers no authority on individual legislators or
caucuses within each respective chamber to act on behalf of the General Assembly or to
substitute their interests for the Commonwealth. Pursuant to Article II, Section 1 of the
Pennsylvania Constitution, “[t]he legislative power of this Commonwealth shall be vested
in a General Assembly, which shall consist of a Senate and a House of Representatives.”
PA. CONST. art. II, § 1. Because the House and Senate Intervenors in their official capacity
cannot speak for the General Assembly as a whole, and therefore do not collectively
represent that body’s legislative prerogatives, in an appropriate case I would be receptive
to the argument that they are not “person[s]” with a “legally enforceable interest” permitted
to intervene under Rule 2327 in an action challenging the constitutionality of a
Pennsylvania statute.3
3 House and Senate Intervenors nonetheless may seek leave of court to file briefs
as amicus curiae consistent with the requirements of Pa.R.A.P. 531.
[83 MM 2020] - 6 | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/6823536/ | —Trademark for electrical apparatus, namely, meter relays, expanded scale meter relays, etc. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903122/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered January 21, 1987, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review an order of the same court (Owens, J.), dated December 10, 1986, which, after a hearing, denied the defendant’s motion to set aside the verdict pursuant to CPL 330.40.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
Viewing the entirely circumstantial evidence in a light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt, as the facts from which the inference of his guilt is drawn, when perceived as a whole, are inconsistent with his innocence and exclude to a moral certainty every other reasonable hypothesis (see, People v Lewis, 64 NY2d 1111; People v Way, 59 NY2d 361; People v Barnes, 50 NY2d 375). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).
Additionally, we find that it was entirely proper for the trial court to permit the prosecutor to impeach the defendant’s character witnesses by cross-examining the witnesses on whether they had heard about a specific incident in which the defendant allegedly had threatened his landlady’s life. It is well established that character witnesses may be cross-examined as to the existence of rumors or reports of particular acts allegedly committed by the defendant which are inconsistent with the reputation they have attributed to him (see, Richardson, Evidence § 153 [Prince 10th ed]; People v Tempera, 94 AD2d 748, 749).
Furthermore, we agree with the hearing court that the several minor incidents alleged to constitute court officer and juror misconduct did not affect any substantial right of the defendant or impair the ability of the jury to fairly and impartially assess the case (see, People v Horney, 112 AD2d *430841, lv denied 66 NY2d 615; People v McCurdy, 86 AD2d 493; People v Brown, 42 AD2d 633).
Lastly, we have reviewed the defendant’s remaining contention with respect to the prosecutor’s comments during summation, and we find that this claim has not been properly preserved for appellate review (see, People v Medina, 53 NY2d 951; People v Santiago, 52 NY2d 865). We decline to review this issue in the interest of justice. Bracken, J. P., Weinstein, Rubin and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903123/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vinik, J.), rendered June 3, 1986, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the eyewitness’s testimony contained significant inconsistencies and should not have been believed by the jury. However, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
The defendant’s claim of error regarding the submission of a verdict sheet is not preserved for appellate review (CPL 470.05 [2]) and we decline to reach it in the interest of justice. Kunzeman, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903126/ | In a habeas corpus proceeding, Norcott Corby appeals from (1) a judgment of the Supreme Court, Westchester County (Dachenhausen, J.), entered April 7, 1987, which dismissed the writ and (2) an order of the same court entered May 29, 1987, which denied his motion to renew.
Ordered that the judgment and the order are affirmed, without costs or disbursements.
The appellant was convicted of manslaughter in the first degree and sentenced to a maximum of 25 years in prison. On April 23, 1984, he was paroled. He was later placed under the supervision of the Florida Department of Corrections pursuant to the terms of the Uniform Act for Out-of-State Parolee Supervision (Executive Law § 259-m). It is undisputed that, within five months of his release on parole, the appellant violated the conditions of his parole when, on September 17, 1984, in the State of New Jersey, he possessed a large quantity of cocaine. He was subsequently convicted of various criminal charges arising out of that incident, and on May 16, 1985, he was sentenced in New Jersey to 364 days in the Salem County Jail, 2 to 5 years’ probation, and a $5,000 fine.
The appellant subsequently returned to Florida where he continued his pattern of criminal behavior. On August 12, 1986, he threw a rock through a window and, within two weeks, pleaded guilty to the misdemeanor of malicious mischief. Although he was sentenced to time served for this crime, the appellant remained incarcerated in the Dade County Jail pursuant to a parole violation warrant which had *433been issued in New York, based in part on his New Jersey criminal conviction. The appellant claims that he waived extradition to New York on November 12, 1986. However, no copy of a written waiver of extradition was annexed to the petition. This alleged waiver occurred after a Governor’s warrant had been issued by the State of New York on November 4, 1986. The appellant was returned to New York on November 21, 1986. He was given a final revocation hearing within 90 days thereafter, on February 18, 1987. After a hearing, his parole was revoked.
The appellant then commenced this habeas corpus proceeding, alleging that he was not a “compact parolee” and that, therefore, a final revocation hearing had to have been conducted within 90 days of his alleged waiver of extradition in accordance with Executive Law § 259-i (3) (a) (iv). The Supreme Court, finding that the appellant was a compact parolee, and relying on Executive Law § 259-o (4), held that the hearing had been timely, and dismissed the petition. The court also denied a subsequent motion to renew in which appellant claimed, inter alia, that Executive Law § 259-o (4) is unconstitutional as applied. We now affirm.
On appeal, the appellant has abandoned the argument that he was not a compact parolee. Ordinarily, compact parolees are entitled to a hearing within 90 days of their return to New York pursuant to Executive Law § 259-o (4). However, the appellant argues that the statute is inapplicable since, by its own terms, it is limited only to compact parolees who were afforded a preliminary hearing with respect to their alleged parole violations. No preliminary hearing was granted to the appellant because no such hearing was required in his case (see, Executive Law § 259-i [3] [c] [i] [no preliminary hearing required where parole violation is based on new criminal conviction]; see also, Matter of Ross v Chairman of N. Y. State Bd. of Parole, 119 AD2d 961).
In arguing that the 90-day limitation set forth in Executive Law § 259-o (4) does not apply to him because no preliminary hearing was conducted in his case, the appellant apparently assumes that the 90-day limitation set forth in Executive Law § 259-i (3) (f) (i) would therefore be the applicable provision. However, the 90-day limitation set forth in that section runs from the date of the probable cause determination and, as noted above, no such determination was made, nor was such a determination necessary in this case.
Considering the relevant provisions of the Executive Law in their entirety, and also considering the relevant legislative *434history, we conclude that the Supreme Court correctly held that the 90-day limitation set forth in Executive Law § 259-o (4) is applicable to the appellant’s case. Subdivision (4) was added to Executive Law § 259-0 in 1984 (see, L 1984, ch 435, § 2 [eff Nov. 1, 1984]), and we find that the intent of this amendment was to provide that all New York parole violators who had been released to other States pursuant to Executive Law § 259-m, and who were later incarcerated in such States, would not be entitled to final parole revocation hearings until within 90 days after their return to New York (see, mem of Executive Dept, Div of Probation, to Counsel to the Governor, July 12, 1984; see also, mem of State Executive Dept, Div of Parole, 1984 McKinney’s Session Laws of NY, at 3294-3295). It does not appear that the subsequent amendment to this statute (L 1985, ch 211, § 1 [eff June 18, 1985] [substituting the phrase "(w)henever a preliminary violation hearing is conducted in another state pursuant to this section” for "(t)he”]) was intended to alter its scope; rather, the intent was to clarify that the 90-day period should run from when the compact parole violator is returned to New York, rather than from the date of any preliminary hearing (see, mem of State Div of Parole, 1985 McKinney’s Session Laws of NY, at 2996-2997). We also note that the Third Department, in dicta, has indicated its view that Executive Law § 259-o (4) applies to compact parole violators who are returned to New York, even where no preliminary hearing was necessary (see, Matter of Alevras v Chairman of N Y. Bd. of Parole, 118 AD2d 1020, 1021).
We have examined the appellant’s remaining arguments and find them to be without merit. Kunzeman, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903127/ | Applications by petitioner (1) to suspend respondent Stanley Shapiro, an attorney and counselor-at-law, admitted to practice in the State of New York by this court on June 27, 1951, on the ground that respondent is guilty of professional misconduct immediately threatening the public interest and (2) to authorize the Grievance Committee to bring a proceeding against the respondent, based upon the acts of professional misconduct alleged in the memorandum, dated January 28, 1988.
*435Upon the papers filed in support of the application and no papers filed in opposition thereto, it is
Ordered that the application is granted; and it is further,
Ordered that the respondent, Stanley Shapiro, pursuant to section 691.4 (l) of the Rules Governing the Conduct of Attorneys (22 NYCRR 691.4 [l]) is immediately suspended from the practice of law in the State of New York, until the further order of this court; and it is further,
Ordered that upon the papers filed in support of the application pursuant to Judiciary Law § 90 (7), the Grievance Committee for the Second and Eleventh Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court as petitioner against said Stanley Shapiro, an attorney, upon the acts of professional misconduct alleged in the order to show cause dated December 14, 1987; and it is further,
Ordered that the respondent Stanley Shapiro is directed to comply with the directions of said Grievance Committee.
Ordered that Robert h. straus, Esq., the Chief Counsel to the Grievance Committee for the Second and Eleventh Judicial Districts, Suite 1200, Municipal Building, Brooklyn, New York 11201 is hereby appointed as attorney for the petitioner in such proceeding; and it is further,
Ordered that the said Stanley Shapiro, be and he hereby is commanded to desist and refrain: (1) from practicing law in any form either as principal or agent, clerk or employee of another; (2) from appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission or other public authority; (3) from giving to another an opinion as to the law or its application, or any advice in relation thereto; and (4) from holding himself out in any way as an attorney and counselor-at-law; and it is further,
Ordered and directed that the respondent, Stanley Shapiro, shall comply with this court’s rules governing the conduct of disbarred, suspended or resigned attorneys—a copy of such rules being annexed hereto and made a part hereof. Mollen, P. J., Mangano, Thompson, Bracken and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903128/ | Appeal by the petitioners from a judgment of the Supreme Court, Suffolk County, dated March 1, 1988.
Ordered that the judgment is affirmed, without costs or disbursements, for the reasons stated by Justice Doyle at the Supreme Court, Suffolk County. Thompson, J. P., Brown, Weinstein and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903129/ | In a proceeding to validate (proceeding No. 1) and a cross proceeding to invalidate (proceeding No. 2), petitions designating the petitioners in proceeding No. 1 as candidates in the Republican Party primary election to be held on April 19, 1988, for the party positions of delegates and alternate delegates to the 1988 Republican National Convention from the 20th Congressional District, all supporting Jack F. Kemp, the appeals are from (1) a judgment of the Supreme Court, Westchester County (Ruskin, J.), entered March 4, 1988, which dismissed proceeding No. 1, and (2) a judgment of the same court, also entered March 4, 1988, which dismissed proceeding No. 2.
Ordered that the judgment in proceeding No. 1 is affirmed, without costs or disbursements; and it is further,
Ordered that the appeal from the judgment in proceeding No. 2 is dismissed as academic, without costs or disbursements, in light of our determination with respect to the judgment in proceeding No. 1.
The Supreme Court properly dismissed the validation proceeding (proceeding No. 1) as jurisdictionally defective because of the petitioners’ failure to effectuate personal service upon objector Sunderland within the prescribed period of 14 days after the last day to file petitions (see, Election Law § 16-102; Matter of Gadsen v Board of Elections, 57 NY2d 751; Matter of Wein v Molinari, 51 NY2d 717; Matter of Macri v D’Apice, 122 AD2d 905; Matter of Fratello v Kruger, 64 AD2d 937; Matter of Bruno v Ackerson, 51 AD2d 1051, affd 39 NY2d 718).
*437Matter of Pell v Coveney (37 NY2d 494), upon which the petitioners rely, is distinguishable; the delay of the Westchester County Board of Elections in issuing its determination herein invalidating the petition until after the last day for commencing a proceeding did not cause proceeding No. 1 to be untimely. Instead, the petitioners in proceeding No. 1 actually attempted to commence the proceeding within the statutory time limit but did not do so properly. Thus, the untimeliness of proceeding No. 1 was due to the petitioners’ actions (see, Matter of Elston v Mahoney, 122 AD2d 969). Accordingly, the Supreme Court properly dismissed proceeding No. 1 for lack of jurisdiction. Thompson, J. P., Brown, Weinstein and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903130/ | Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 7, 2011, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant airline established its entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she slipped and fell on “wet icy dirt” while boarding defendant’s aircraft, after her flight had been delayed due to inclement weather. Defendant submitted, inter alia, climatological records showing that plaintiffs accident occurred during an ongoing storm, during which its duty to remedy a dangerous condition caused by the storm was suspended (see Pippo v City of New York, 43 AD3d 303, 304 [1st Dept 2007]; Blackwood v New York City Tr. Auth., 36 AD3d 522 [1st Dept 2007]). Defend*486ant had no obligation to provide a constant remedy for tracked-in or leaking water during the storm, and showed that it took reasonable precautions to address wet conditions by laying a carpet runner along the jetbridge and placing a canopy over the aircraft door (see Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462, 464-466 [1st Dept 2009]; Solazzo v New York City Tr. Auth., 21 AD3d 735 [2005], affd 6 NY3d 734 [2005]).
Plaintiff’s opposition failed to raise a triable issue of fact. Contrary to plaintiffs argument, the testimony of defendant’s employee, stating that the precipitation was “[o]n and off,” that day does not raise a triable issue since it does not show that plaintiff’s accident occurred during “a significant lull in the storm,” or a reasonable time after the storm had ceased (Pipero v New York City Tr. Auth., 69 AD3d 493, 493 [1st Dept 2010]; see Ioele v Wal-Mart Stores, 290 AD2d 614, 616 [3d Dept 2002]). Indeed, the employee also testified that the rain or snow ended “well into midnight the next morning.”
We have considered plaintiffs remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Manzanet-Daniels, Roman and Clark, JJ. [Prior Case History: 2011 NY Slip Op 32615(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/555106/ | 924 F.2d 709
13 U.C.C. Rep. Serv. 2d (West) 1094
R.E. DAVIS CHEMICAL CORPORATION, an Illinois corporation,Plaintiff-Appellant,v.DIASONICS, INCORPORATED, a California corporation, Defendant-Appellee.
No. 90-1334.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 10, 1990.Decided Feb. 8, 1991.
Sherwin J. Malkin, Chicago, Ill., for plaintiff-appellant.
Thomas M. Knepper, George M. Hoffman, Neal, Gerber & Eisenberg, Chicago, Ill., for defendant-appellee.
Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.
CUDAHY, Circuit Judge.
1
Though uncomplicated on its face, this contract dispute has spawned a protracted cycle of litigation. It presents puzzling questions of first impression regarding the manner in which the hypothetical expenses of a seller, avoided as a result of the buyer's premature breach, should figure in the lost profits damage calculus.
I.
2
Diasonics is a Delaware1 corporation engaged in the business of manufacturing and marketing medical diagnostic equipment. R.E. Davis Chemical Corporation (Davis), an Illinois business, contracted to purchase one such device, a .35 tesla nuclear magnetic resonance instrument (MRI), from Diasonics at the price of $1,500,000 pursuant to a written agreement dated February 23, 1984. By the terms of the agreement, upon payment of the full purchase price Davis was to be furnished a $225,000 research grant "based on [an] approved program of development activities." Appellee's Br. at 3. The agreement also afforded Davis the option to upgrade the MRI to a high-field/spectroscopy system by June 1, 1985--approximately 15 months after delivery of the MRI was scheduled--at an additional cost of $700,000. Davis advanced a $300,000 deposit for the MRI but failed to take delivery, thereby breaching the contract. After Davis repudiated the contract, Diasonics resold the MRI to a third party at the contract price.
3
When Diasonics refused to refund the $300,000 deposit, Davis filed suit demanding return of the downpayment pursuant to section 2-718(2) of the Uniform Commercial Code (the UCC). Ill.Rev.Stat. ch. 26, para. 2-718(2) (1985). Diasonics counterclaimed, alleging that it was entitled to recover the profit it lost on the sale under UCC 2-708(2) because it was a lost volume seller. Ill.Rev.Stat. ch. 26, para. 2-708(2) (1985). The district court entered summary judgment for Davis, holding that lost volume sellers are not eligible for recovery of lost profits but rather are limited to damages measured by the difference between the resale price and the contract price together with incidental damages under UCC 2-706(1). Ill.Rev.Stat. ch. 26, para. 2-706(1) (1985). Concluding that the Illinois Supreme Court would follow the majority of jurisdictions, which allow lost volume sellers to recoup their lost profits under UCC 2-708(2), we reversed and remanded the case with instructions that
4
the district court calculate Diasonics' damages under 2-708(2) if Diasonics can establish, not only that it had the capacity to make the sale to Davis as well as the sale to the resale buyer, but also that it would have been profitable for it to make both sales ... [and that Diasonics] probably would have made the second sale absent the breach.
5
R.E. Davis Chemical Corp. v. Diasonics, Inc., 826 F.2d 678, 685 (7th Cir.1987) (Diasonics I ).
6
On remand, Diasonics filed a motion in limine to preclude Davis from introducing evidence of the additional expenses Diasonics would have been forced to incur had Davis performed its part of the bargain and elected to exercise the upgrade option. The district court granted this motion at the start of the three-day bench trial. Concluding that Diasonics had adequately established damages for its lost profit amounting to $453,050, the district court ultimately entered judgment for Diasonics in the sum of $153,050 ($453,050 less the $300,000 deposit which Diasonics retained).
7
On appeal, Davis challenges the district court's verdict on the following grounds. First, Davis would prohibit Diasonics from recovering the profit it lost on the sale because Diasonics failed to precisely identify the buyer to whom it resold the MRI. Davis also quibbles with Diasonics' damage computations, asserting that they are inconsistent, incomplete and unreliable. In their stead, Davis proffers its own more favorable accounting figures. Finally, Davis contends that the district court erred by refusing to allow it a $225,000 credit for the research grant and by excluding evidence of the loss Diasonics would have sustained had Davis exercised its upgrade option.
II.
8
Ordinarily, a seller's damages for a buyer's breach of contract are measured by the difference between the contract price and the market price. In some situations, however, this sum is inadequate to place the seller in as good a position as performance would have done. For example, a broken contract costs a lost volume seller--one with a finite quantity of customers and the capacity to make an additional sale--its profit on one sale. To be made whole, a lost volume seller must thus recover damages equal to the profit it lost on the sale.
9
In accordance with this reasoning, in Diasonics I, 826 F.2d at 681, we adopted for the first time in Illinois the rule that a lost volume seller is entitled to recoup its lost profit. We held that in order to qualify as a lost volume seller, a plaintiff must establish the following three factors:
10
(1) that it possessed the capacity to make an additional sale,
11
(2) that it would have been profitable for it to make an additional sale, and
12
(3) that it probably would have made an additional sale absent the buyer's breach.
13
See id. at 685.
A. Lost Volume Seller Status
14
Diasonics has adduced ample evidence to establish its status as a lost volume seller. The evidence is undisputed that Diasonics possessed the capacity to manufacture one more MRI. Diasonics also demonstrated that it was, in the words of Judge Kocoras, "beating the bushes for all possible sales." Tr. at 3. Douglas McCutcheon, controller of Diasonics' MRI Division, testified at trial that Diasonics' sales force pursued "every possible lead" and attempted to "identify every possible qualified customer" in 1984. Appellee's Br. at 9.2 The fact that Diasonics was still a young company struggling to acquire business in an extremely competitive market at the time of Davis' breach lends independent corroboration to McCutcheon's statements. Based upon this evidence, the district court's finding that Diasonics probably would have made an additional sale but for Davis' breach is not clearly erroneous.
15
Davis offers no evidence to controvert the proof adduced by Diasonics that it both possessed the capacity to manufacture additional MRIs and was actively soliciting every possible customer for MRI sales in 1984. Instead, Davis clutches at one footnote in our previous opinion to justify its contention that Diasonics must precisely identify the resale buyer.3 In this case, it appears that the generic MRI units manufactured by Diasonics were interchangeable and thus were not identified to any particular customer until just prior to delivery. See Appellee's Br. at 13. The mere fact that Diasonics was unable to specify the particular unit Davis contracted to buy and trace the exact resale buyer for that unit thus should not foreclose it from recovering lost profits. Without more evidence, we decline to impose upon Diasonics the burden of proving the exact buyer who purchased this particular system in order to qualify as a lost volume seller.
B. Damage Calculations
16
Davis also takes issue with Diasonics' damage calculations, asserting that they are unreliable because they employ average costs rather than actual costs, are inconsistent with other figures presented during litigation or displayed on Diasonics' profit and loss statements, inaccurately include certain revenues that were not received while omitting certain costs, and erroneously contain revenues from the sale of a different type of MRI unit. But Diasonics need only prove its damages with reasonable certainty, not with mathematical precision. See UCC 1-106 comment 1; Restatement (Second) of Contracts Sec. 352 (1981). Moreover, the district court's conclusions regarding Diasonics' computations constitute factual determinations that cannot be overturned unless clearly erroneous. See Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985); Teradyne, Inc. v. Teledyne Indus., Inc., 676 F.2d 865, 869 (1st Cir.1982) (master's finding that cost statements were reliable not reversible unless clearly erroneous). After all, the district court accepted Diasonics' figures and rejected the numbers proffered by Davis based in part upon its assessment of the credibility of their respective accountants. See Tr. at 11. Even if this court would weigh the evidence differently were it sitting as trier of fact, the district court's judgment with respect to the accounting methods utilized to obtain these figures should stand unless it is clearly unreasonable. The district court's decision certainly satisfies this standard.
C. Research Grant
17
The district court refused to deduct $225,000 from Diasonics' damages, ruling that the conditions precedent to provision of the research grant--payment of the full contract price and approval of a program of development activities--had not been satisfied. Simple reliance upon Davis' failure to comply with the conditions precedent to payment of the research grant, however, effectively skirts the true question at issue here--whether the research grant was what it purported to be or was really a discount masquerading in other garb. If the research was indeed genuine and would have redounded to Diasonics' benefit, then Diasonics is not obliged to dole out $225,000. But if both parties understood the research grant to be a type of rebate, automatically payable upon receipt of the MRI in return for practically worthless information, then Davis should receive a $225,000 credit on the damages it must pay Diasonics. Davis' breach does not entitle Diasonics to gain more than the benefit of its bargain. Upon remand, the district court must thus determine whether the research grant served merely as a disguised discount from the purchase price, or whether it constituted an independent exchange supported by genuine consideration.4
D. Upgrade Option
18
The last and most complex issue entails a similarly fact-intensive inquiry into whether the upgrade arrangement constitutes a true option or, rather, an integral and enforceable provision of the original contract. Illinois courts generally hesitate to enforce options unless the option holder has clearly availed itself of the right by performing all conditions precedent to its exercise. See, e.g., Southwest Forest Indus., Inc. v. Sharfstein, 482 F.2d 915, 924 (7th Cir.1972) ("Illinois law is particularly adamant in requiring that option contracts be strictly construed and that an option be considered exercised only if the person holding the opting power adheres exactly to the conditions precedent to its effective consummation."). This particular care probably reflects the potential for unfairness when allowing an option holder to benefit from an agreement by which it could not have been bound. Reasoning that Davis failed to comply strictly with the condition precedent to exercise of the option by repudiating the contract, the district court accordingly excluded evidence of the losses Diasonics would allegedly have sustained had it performed the upgrade.5
19
If the upgrade were a virtual certainty, however, the expenses of conveying a highfield/spectroscopy system that Diasonics avoided as a result of Davis' breach should certainly figure in the lost profits damage calculus. Davis presented some evidence to suggest that the upgrade provision, though couched in option terminology, was actually an integral part of the original bargain.6
20
Courts are often forced to divine the true meaning of such ambiguous arrangements. In Joseph v. Wilson, 57 Ill.App.3d 212, 14 Ill. Dec. 831, 372 N.E.2d 1110 (1978), for example, the Illinois Appellate Court engaged in essentially the same inquiry, determining whether an agreement allowing an employee to purchase shares of stock constituted an option to purchase contingent upon employment or an outright contract of sale. "Even the name which the parties may ascribe to such an agreement is not conclusive," the court declared, construing the language of the contract in light of the surrounding circumstances. Id. at 216-17, 14 Ill.Dec. at 834; 372 N.E.2d at 1113. Because the contract guaranteed the plaintiff the right to purchase stock valued at five dollars per share for only 20 cents per share, the court held that the agreement must have contemplated some additional consideration, namely the plaintiff's continued employment. Cf. Restatement (Second) of Contracts Sec. 240 (contract is divisible only if it can be divided into corresponding pairs of part performances in such a way that a court may treat the parts of each pair as agreed equivalents).
21
Courts perform an almost identical task in the myriad cases where they must gauge whether an agreement constitutes a sale or a lease for the purpose of secured transactions law. In In re AAA Machine Co., 30 B.R. 323 (Bankr.S.D.Fla.1983), for example, the court compared the option price to the original purchase price and the fair market value of the property to determine whether the contract was a true lease or a security agreement. The court reasoned that, when the option allows purchase of the property for purely nominal consideration, the only "economically sensible" course for the lessee is to exercise its power to purchase at the end of the lease term. The court recognized that under such circumstances the lease in reality functions as a security agreement. See also In re United Nesco Container Corp., 47 B.R. 230 (Bankr.E.D.Pa.1985) (construing lease containing option to purchase computer equipment worth between $5,000 and $10,000 for only $1 as a sale); In re Duprat, 28 B.R. 109 (Bankr.D.C.Vt.1983) (construing lease-purchase agreement for trailer as a contract of sale because the agreement provided that lessee would pay for all repairs, park rent, taxes and insurance, expenses which are ordinarily the responsibility of the owner).
22
Attempting to realize the true intentions of the parties does not require us to engage in abstract calculations of theoretical probabilities. Avoiding the thicket of academic economics, we opt for a pragmatic approach. Only when the evidence demonstrates a substantial likelihood that the option would have been exercised and persuasively establishes the value of the option should that value figure in the calculation of damages. Cf. Unique Systems, Inc. v. Zotos Int'l, Inc., 622 F.2d 373, 379 n. 6 (8th Cir.1980) (refusing to allow recovery of lost profits when probability that defendant would have exercised option to purchase additional units was too speculative).
23
Without more evidence, it is impossible to determine whether Davis' upgrade option should enter into the calculation of Diasonics' lost profits. Certain principles may be distilled from a number of diverse contract interpretation cases to guide in this inquiry. Upon remand, the district court should determine the probability that the option would have been exercised by examining the following non-exhaustive set of factors:
24
(1) the importance of the option to the original bargain,
25
(2) the relationship between the option's value and the additional $700,000 Davis was required to pay, and
26
(3) the relationship between the value of the MRI Davis contracted to buy and the original contract price.
27
If the original contract price was inflated and the additional $700,000 essentially nominal in relation to the value added to the MRI by the upgrade, then both parties may have understood that the only economically rational course available to Davis was to purchase the upgrade. Under such circumstances, Davis would probably have exercised its option. But if the additional $700,000 even roughly approximated the value added to the MRI by the upgrade, Davis may well have chosen not to exercise the option.
III.
28
Diasonics is entitled to the benefit of its bargain, no more, no less. Although we hesitate to burden district courts with impossibly complex damage computations, we remand for further consideration of the evidence with respect to the research grant and the upgrade option. The district court's entry of judgment is thus AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for further proceedings not inconsistent with this opinion.
1
Although currently incorporated in Delaware, at the time this suit was filed Diasonics was incorporated under the laws of the state of California. Diasonics' principal place of business remains in California
2
McCutcheon explained that Diasonics' sales persons were doing
[e]verything they could possibly do to identify persons who were interested in MRI or even who had the capabilities to purchase MRI ... [and] continuing at all times to obtain any and all possible orders for [the] MRI product.... The sales process for MRI was so complex and involved so many variables that [they] could not, in advance, decide which accounts or which potential prospects would eventually buy from Diasonics ... [so], in order to maximize ... completed sales, [they] had to take every possible prospective sale down the path of complete negotiations at all times.
Appellee's Br. at 9-10.
3
Footnote 13 of Diasonics I sets forth one commentator's three-factor test for determining whether a buyer's breach has resulted in loss of sales volume:
(1) the person who bought the resold entity would have been solicited by plaintiff had there been no breach and resale,
(2) the solicitation would have been successful, and
(3) the plaintiff could have performed the additional contract.
See Diasonics I, 826 F.2d at 683 (quoting Harris, A Radical Restatement of the Law of Seller's Damages: Sales Act and Commercial Code Results Compared, 18 Stan.L.Rev. 66, 82 (1965)).
4
The district court emphasized that the research to be undertaken would have been useful to Diasonics but also observed that Diasonics habitually afforded its customers some form of discount due to the highly competitive nature of the MRI market. See Tr. at 12. Although the district court mentioned this conflicting evidence, its ambiguous pronouncements fail to elucidate the precise reasons behind its decision to deny Davis credit for the research grant. The district court may have considered this conflicting evidence and concluded that the research was actually valuable to Diasonics. Or it may simply have relied upon the condition precedent analysis to hold that the $225,000 was not owed until payment of the full purchase price
5
The district court granted Diasonics' motion in limine to exclude Davis' evidence, declaring that
whatever the intention to exercise the option was, the contract was breached in the first instance. The main unit was not purchased and sold in accordance with the original contract.... [I]t may have been the intention when the contract was drafted, and I assume it may well have been a likelihood had the contract been satisfied in the first instance, but we never got to that point.
Appellant's Br. at 26-27.
6
Davis introduced evidence that it specially designed the MRI building to house the more powerful highfield/spectroscopy system. See Appellant's Br. at 29. Moreover, it appears that Diasonics itself initially characterized the upgrade provision as an enforceable part of the original agreement when it counterclaimed seeking additional damages for the profits it lost by Davis' failure to upgrade. See id. at 25 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/4157244/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JUDICIAL WATCH, INC. )
)
Plaintiff, )
)
v. ) Civil Action No. 15-1776 (RMC)
)
UNITED STATES DEPARTMENT )
OF THE TREASURY, )
)
Defendant. )
)
MEMORANDUM OPINION
Wasn’t it Bernie Sanders who expressed exasperation at the continuing attention
to Hillary Clinton’s emails some 18-20 months ago? He spoke too soon. Many interested
parties have used the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2012) to try to find
traces of the former Secretary of State’s use of a private email server in emails at other federal
agencies. Plaintiff Judicial Watch, which sued the Treasury Department to enforce its FOIA
request for such emails, cannot believe that none were found; it wants a broader search.
Treasury insists its three searches were appropriate enough, and has filed a Motion for Summary
Judgement [Dkt. 7], asserting they have met their FOIA obligations. Judicial Watch has
opposed, [Dkt. 12], and Treasury has replied [Dkt. 13]. The Court agrees with Treasury.
Summary judgment will be granted to the Department.
I. BACKGROUND
Plaintiff Judicial Watch Inc. is a nonprofit education institution that regularly
requests records under FOIA to “shed light on the operations of the federal government and to
educate the public about those operations.” Compl. [Dkt. 1] ¶ 3. Judicial Watch submitted a
1
FOIA request to the Department of the Treasury seeking any and all email correspondence
between specific Treasury departments and any “clintonemail.com” address between February 2,
2009 and January 31, 2013. Id. ¶ 5. Specifically, Judicial Watch requested any such emails from
the following three Treasury departments: (1) the Office of Foreign Assets (OFAC); (2) the
Committee on Foreign Investment (CFIUS); and (3) the Office of the Secretary of the Treasury.
Id.
In response, the three named Treasury departments independently conducted
searches for responsive documents. See Def.’s Mem. in Support of Mot. for Sum. J. (MSJ
Mem.) [Dkt. 7-1] at 2; Mot. Sum. J (MSJ) Ex. B [Dkt. 7-4], Ex. C [Dkt. 7-5]. The searches was
limited to the “senior policy officials within each of the[] three offices,” including “Secretaries of
the Treasury, Associate Directors, Assistant Directors, the Deputy Director, and Director of
OFAC, and the Directors of CFIUS.” MSJ Ex. A (Law Decl.) [Dkt. 7-3] ¶ 5. The Secretary’s
Office and CFIUS searched for any email communication to or from any “clintonemail.com”
address. Id. OFAC, for each individual searched, searched for email communications using
either “clintonemail.com.” “clintonemail” or “clinton” as search terms. Id. No search identified
any responsive documents.
II. LEGAL STANDARD
Summary judgment is the typical vehicle to resolve an action brought under
FOIA. See McLaughlin v. U.S. Dep’t of Justice, 530 F. Supp. 2d 210, 212 (D.D.C.2008). Under
Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of
law. Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of
2
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the Court must draw all
reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The party opposing a motion for summary judgment, however, “may not
rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248.
FOIA requires federal agencies to release government records to the public upon
request, subject to certain exceptions. See 5 U.S.C. § 552(b); Wolf v. C.I.A., 473 F.3d 370, 374
(D.C. Cir. 2007). The defendant in a FOIA case must show that its search for responsive records
was adequate. See Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). In assessing
whether an agency has met its obligations, the inquiry therefore goes to the adequacy of the
search, not whether other responsive records may conceivably exist elsewhere. Steinberg v.
Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). A search’s adequacy is measured by a
standard of reasonableness and depends on the individual circumstances of each case. Truitt v.
Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); Judicial Watch, Inc. v. Dep’t of State, 177 F.
Supp. 3d 450, 455 (D.D.C. 2016).
“A requester dissatisfied with the agency’s response that no records have been
found may challenge the adequacy of the agency’s search by filing a lawsuit in the district court
after exhausting any administrative remedies.” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d
321, 326 (D.C. Cir. 1999). “[T]he agency must demonstrate beyond material doubt that its
search was reasonably calculated to uncover all relevant documents.” Nation Magazine, Wash.
Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). An agency must search for
3
documents in good faith, using methods that are reasonably expected to produce the requested
information. Valencia–Lucena, 180 F.3d at 326 (citing Oglesby v. U.S. Dep’t of Army, 920 F.2d
57, 68 (D.C. Cir. 1990)). The principal issue is not whether the agency’s search uncovered
responsive documents, but whether the search was reasonable. Oglesby, 920 F.2d at 67 n.13
(citing Meeropol v. Meese, 790 F.2d 942, 952–53 (D.C. Cir. 1986)). The agency need not search
every record in the system or conduct a perfect search. SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1201 (D.C. Cir. 1991); Meeropol, 790 F.2d at 952, 956.
III. ANALYSIS
Treasury argues that its searches for documents were adequate, and it is therefore
entitled to summary judgment. MSJ Mem. at 1. Judicial Watch counters that Treasury has not
shown that its search, limited only to senior officials, was appropriate. Opp. at 3. Specifically,
Judicial Watch argues that Treasury has not demonstrated that it was unable to perform a global
search of all employees’ emails in the three offices. Id. If Treasury is able to execute such a
search, Judicial Watch argues, then “Treasury’s decision to narrow the search [to senior agency
officials] would not be reasonable or appropriate.” Id.
However, the operative question is not whether a global search of all employees is
technically possible, but whether Treasury’s searches were “reasonably calculated to uncover all
relevant documents.” Nation Magazine, 71 F.3d at 890. Treasury has proffered, through its
supporting affidavits, that senior agency officials were “the only people in each office who could
reasonably have communicated with Ms. Clinton or one of her senior aides, while Ms. Clinton
was serving as Secretary of State.” Law Decl. ¶ 5. Treasury asserts that, because of this fact,
only a search of those officials’ emails would be reasonably likely to uncover any relevant
records.
4
Judicial Watch has given the Court no reason to doubt Treasury’s
commonsensical explanation. While it may be the case that Treasury could perform a global
search of all its employees’ emails, there is no indication that such a search of non-senior
employees would be reasonably calculated to uncover relevant documents. There is further no
allegation or indication that Treasury undertook its searches in bad faith. Treasury identified the
relevant records to search and searched them using appropriate search terms. FOIA requires no
more.
CONCLUSION
Because Treasury’s searches for documents were adequate, the Court will grant
its Motion for Summary Judgment. A memorializing Order accompanies this Memorandum
Opinion.
Date: March 31, 2017 /s/
ROSEMARY M. COLLYER
United States District Court
5 | 01-03-2023 | 03-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5903132/ | In an action to recover damages, inter alia, for unlawful interference with contract, the defendant appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Queens County (Graci, J.), dated January 8, 1987, as denied its application for an order adjudging certain nonparty witnesses in contempt, and (2) from so much of an order of the same court, dated February 27, 1987, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated January 8, 1987 is dismissed. That order was superseded by the order *439dated February 27, 1987 made upon reargument; and it is further,
Ordered that the order dated February 27, 1987 is affirmed insofar as appealed from, and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Because the defendant’s application to adjudge certain non-party witnesses in contempt on account of their failure to appear for deposition (see, CPLR 3106 [b]; 2308; Judiciary Law § 753 [A] [5]) is otherwise defective, we need not determine whether the witness and mileage fees required by CPLR 2303 must be tendered in cash. We note that none of the subpoenas contained or was accompanied by a notice stating the "circumstances or reasons such disclosure is * * * required” (CPLR 3101 [a] [4]). Moreover, because the nonparty witnesses did not appear on the application to punish for contempt, the defendant’s failure to include in its notice of motion the warning and notice required by Judiciary Law § 756 renders the application fatally defective (cf., Matter of Rappaport, 58 NY2d 725; see, Bobko v Rohrberg, 85 AD2d 675). Finally, the record before us fails to demonstrate how, when or indeed whether each of the witnesses was served with the papers by which the application to punish for contempt was made (see, Long Is. Trust Co. v Rosenberg, 82 AD2d 591). Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823537/ | —Trademark for measuring and scientific appliances, namely, voltmeters, expanded scale voltmeters, etc. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903138/ | In an action to recover damages for breach of a commercial lease, the defendants appeal from a judgment of the Supreme Court, Westchester County (Nelson, J.), entered April 28, 1986, which upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $5,931.24 as compensatory damages and in the principal sum of $20,000 as punitive damages.
Ordered that the judgment is reversed, on the law and the facts and as an exercise of discretion, without costs or disbursements, the plaintiffs claim for punitive damages is stricken, the defendants are granted judgment as a matter of law for $147 for water and sewer rent, and a new trial is granted on the issue of compensatory damages only, unless within 20 days after service upon the plaintiff of a copy of this decision and order, together with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Westchester County, a written stipulation consenting to reduce the verdict as to compensatory damages to the principal sum of $650, resulting in a net judgment in the plaintiffs favor in the principal sum of $503 and to the entry of an amended judgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements; the findings of fact as to liability, except with respect to the counterclaim for water and sewer rent, are affirmed.
On July 7, 1982, the parties entered into a commercial lease for the premises at 86 Croton Avenue, Ossining, New York. The plaintiff tenant began operation of a pizzeria in this space in October 1982 and the business gradually expanded. It appears that the plaintiff and the defendant Herbert Miller became embroiled in an altercation, which ultimately resulted in the defendant Herbert Miller manually shutting off the plaintiffs hot water heater on June 25, 1983. With the aid of a neighbor and fellow tenant, the plaintiff was able to turn on the water heater but when the situation repeated itself the next day, the fellow tenant refused to allow the plaintiff to *444enter the cellar through his apartment to fix the heater, stating that the defendant Herbert Miller threatened him with eviction if he helped the plaintiff. The defendant Barbara Miller then became involved when she wrote out a receipt purportedly for payment for allegedly necessary repairs to a hot water heater which, according to a plumber who testified at the trial, were not necessary and for which he had not been paid. The plaintiff’s store was closed by the Department of Health for a 12-day period from June 28, 1983 until July 8, 1983.
It is well established that in an action grounded upon private breach of contract, punitive damages may not be awarded. Only when the fraudulent behavior is directed toward the public generally or involves allegations of high moral turpitude so as to imply criminal indifference to a civil obligation is an award of punitive damages proper (Halpin v Prudential Ins. Co., 48 NY2d 906, rearg denied 49 NY2d 801; Walker v Sheldon, 10 NY2d 401; Burger v Brookhaven Med. Arts Bldg., 131 AD2d 622; Frame v Horizons Wine & Cheese, 95 AD2d 514; Katz v American Tech. Indus., 96 AD2d 932). Fully crediting the plaintiff’s allegations, which were accepted by the jury, that the defendant Herbert Miller manually shut off the plaintiff’s hot water heater and thereafter coerced a fellow tenant to deny the plaintiff access to the basement, and further accepting that the defendant Barbara Miller knowingly prepared false business records to substantiate the claim of a broken heater, we cannot conclude that these acts involve such a high degree of moral turpitude as would justify the imposition of punitive damages.
With respect to the compensatory damages, we note that this was a new business and the calculation of lost profits based upon a 12-month projection of profits using as a base figure gross profits of the month immediately before the breach was unduly speculative and must be set aside. In the absence of expert testimony, evidence of the past history of the business or even a comparison to other pizzerias in the neighborhood, the plaintiff’s damages should have been limited to $650 representing a $150 rent abatement for the 12-day closing occasioned by the defendants’ breach, plus the $500 in lost inventory (see, Kenford Co. v County of Erie, 67 NY2d 257; Cramer v Grand Rapids Show Case Co., 223 NY 63; Restatement [Second] of Contracts § 352, comment [b] [1981]).
Finally, with respect to the defendants’ counterclaims, we credit the jury’s evaluation and find that the claims for roof and hot water heater repairs were properly denied. However *445the claim for water and sewer rent which the plaintiff was obligated to pay under the express terms of the lease should have been granted. The parol evidence rule prohibits the plaintiff from asserting that an oral agreement exempts him from such an obligation when under the express written terms of the lease, he was responsible for these charges (Katz v American Tech. Indus., supra; Richardson, Evidence § 602 [Prince 10th ed]). Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903139/ | Orders, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 29 and August 16, 2012, which, to the extent appealed from, denied plaintiffs motion insofar as it sought a commission permitting it to serve subpoenas to obtain nonparty, financial disclosure and testimony from the employers *487of 400 nonparty, out-of-state borrowers of residential mortgage loans, and sought to serve subpoenas on out-of-state borrowers who participated in reduced documentation loan programs, unanimously affirmed, without costs.
This is an action for fraud and breach of contractual representations and warranties by plaintiff, a financial guaranty insurance provider, against defendants, the sponsor, underwriter and servicer of a transaction in which thousands of residential mortgage loans were consolidated into a pool and transferred to a trust formed to issue mortgage-backed securities. None of the parties served as the originator of the underlying mortgage loan transactions or had any direct relationship with any borrower.
Supreme Court correctly denied plaintiffs motion for an open-ended commission to take the deposition and obtain document disclosure, including, among other things, personal investment and bank account statements and personal income tax returns, from nonparty residential mortgage borrowers in every state except New York, three United States territories and the District of Columbia, since plaintiff failed to make a “strong showing of necessity and demonstrate that the information ... is unavailable from other sources” (Williams v New York City Hous. Auth., 22 AD3d 315, 316 [1st Dept 2005], quoting Gordon v Grossman, 183 AD2d 669, 670 [1st Dept 1992]). Since the parties offer conflicting interpretations of the warranties and representations found in the parties’ insurance agreement, the relevance of the requested material is, at best, still yet to be established. Furthermore, in seeking extensive amounts of duplicative, personal and confidential financial information from over five years ago, the discovery request constitutes an undue burden and expense on the responding nonparties (see U.S. Bank, N.A. v GreenPoint Mtge. Funding, Inc., 94 AD3d 58, 64 [1st Dept 2012]). Plaintiffs contention that this discovery is material and necessary to its fraud and breach of contract claims because it could potentially yield evidence that a borrower fraudulently or negligently misrepresented the financial information provided on his or her mortgage loan application is not supported by particularized factual allegations specific to any of the borrowers selected for this disclosure.
For the same reasons, the court properly denied plaintiffs motion to the extent that it sought an open-ended commission to serve subpoenas on the employer of each borrower.
While plaintiff argues that every other court has permitted nonparty discovery of this nature, we find those cases to be distinguishable based on differences in the parties’ governing agreements or the defendants’ direct relationship with the bor*488rowers as originator of the mortgage loans, and in any event, since all of the orders cited by plaintiff are from a trial level state or federal court, they do not constitute binding authority and need not be followed.
Denial is proper for the additional reason that plaintiff has failed to demonstrate that a commission is “necessary or convenient” (CPLR 3108), by neglecting to include “allegations that the proposed out-of-State deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that the judicial imprimatur accompanying a commission will be necessary or helpful” (Reyes v Riverside Park Community [Stage I], Inc., 59 AD 3d 219, 219 [1st Dept 2009] [internal quotation marks omitted]).
We have considered plaintiffs remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Friedman, Manzanet Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903140/ | Judgment of resentence, Supreme Court, New York County (Michael J. Obus, J.), rendered October 14, 2010, as amended November 9, 2010, resentencing defendant, as a second violent felony offender, to an aggregate term of 15 years, with 5 years’ postrelease supervision, unanimously affirmed.
The resentencing proceeding imposing a term of postrelease supervision was neither barred by double jeopardy nor otherwise unlawful (see People v Lingle, 16 NY3d 621 [2011]). Concur— Mazzarelli, J.P., Friedman, Manzanet-Daniels, Roman and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903141/ | In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Sacks, J.), entered October 22, 1986, which is in favor of the defendant and against her, upon a jury verdict.
Ordered that the judgment is affirmed, with costs.
The plaintiff was injured when she fell from a horse while a guest at the Pinegrove Ranch, a dude ranch owned and operated by the defendant. At the trial, the court, over the objection of the plaintiff’s attorney, permitted the defendant to introduce into evidence certain guest registration cards and horseback riding sign-up sheets bearing her signature. The exhibits, as redacted, all contained identical language, i.e., "I recognize that the sporting facilities provided at pinegrove have a certain amount of danger connected with them”. The plaintiff contends on appeal that the trial court erred in permitting these exhibits to be introduced into evidence inasmuch as General Obligations Law § 5-326 precludes the owner or operator of a recreational facility from entering into an agreement with a user of the facility whereby the owner absolves himself of responsibility for his negligence.
We, however, find no error. Initially, we note that the aforementioned statutory provision does not preclude the introduction of such an agreement, as redacted, into evidence but rather deems the agreement void as against public policy and wholly unenforceable (General Obligations Law § 5-326). The language in the exhibits, as redacted, clearly cannot be interpreted so broadly as to suggest to the jury that the defendant is exempt from liability for damages caused by its negligence. Neither is the subject language susceptible to an interpretation that the plaintiff, by affixing her signature to the documents, expressly assumed all risks associated with the use of the facilities. We therefore find no undue prejudice to the plaintiff from the introduction of the challenged exhibits into evidence. In any event, the jury never reached the issue of assumption of risk.
We have examined the remainder of the plaintiff’s contentions on appeal and find them to be without merit. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903142/ | —In an action to recover property damages, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Jiudice, J.), entered May 28, 1987, which denied their motion for leave to enter a default judgment and granted the defendant Town of Clinton’s cross motion to open its default in answering.
Ordered that the order is affirmed, with costs.
In support of its cross motion to vacate its default in answering, the defendant presented an affidavit from its newly elected Town Clerk who received the service of process. Due to her inexperience in such matters, she filed away the papers without notifying other town officials of the pending action.
The determination of what constitutes a reasonable excuse for a default "lies within the sound discretion of the trial court” (De Vito v Marine Midland Bank, 100 AD2d 530, 531; Vernon v Nassau County Med. Center, 102 AD2d 852). We agree with the finding of the Supreme Court that the defendant demonstrated a reasonable excuse for its delay (see, CPLR 5015 [a] [1]). The bureaucratic error was not willful nor did it result in a lengthy delay. In addition, the defendant expeditiously cross-moved to vacate its default upon receiving notice that the plaintiffs intended to enter a default judgment (see, Stolpiec v Wiener, 100 AD2d 931; Matter of Johnson v Town Bd., 85 AD2d 694).
The affidavit of merit submitted by the defendant was sufficient to raise a potentially meritorious defense as the defendant unequivocally denied any responsibility for the cause of excessive water flow onto the plaintiffs’ property (see, Saltzman v Knockout Chem. & Equip. Co., 108 AD2d 908).
Under the circumstances of this case, it was not an abuse of discretion to vacate the defendant’s default. Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903143/ | In an action, inter alia, to recover damages for breach of contract, fraud, profes*447sional negligence, fraudulent concealment and intentional interference with contractual obligations, (1) the defendants Charles T. Walsh and Bowe, Walsh & Associates (hereinafter Bowe Walsh), and Converse Ward Davis Dixon (hereinafter Converse Ward) appeal from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 18, 1987, as denied those branches of their respective motion and cross motion which were to dismiss the sixth, seventh and eighth causes of action in the second amended complaint, and (2) the plaintiff cross-appeals from so much of the same order as granted those branches of the aforesaid motion and cross motion which were to dismiss the fourth, ninth and tenth causes of action asserted in the second amended complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof which denied those branches of the motion and cross motion which were to dismiss the sixth, seventh and eighth causes of action asserted in the second amended complaint, and substituting therefor a provision granting those branches of the motion and cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs, payable to the appellants appearing separately and filing separate briefs.
The defendant Bowe Walsh and the defendant County of Suffolk (hereinafter the County) entered into a contract in April 1971 which provided that Bowe Walsh would provide certain engineering services in connection with the planning, design and construction of a sewer pipeline serving the Suffolk County Southwest Sewer District’s Water Pollution Control Plant at Bergen Point. Thereafter, Bowe Walsh contracted with Converse Ward to provide a report outlining the results of certain ocean, bay and land soil borings. Converse Ward submitted this report in February 1974.
In October 1977 the plaintiff successfully bid on the contract to construct a portion of the sewer pipeline in question, to wit, that portion of the pipeline which would run under the Great South Bay. Pursuant to the construction contract, the plaintiff furnished performance and material bonds underwritten by Fidelity and Deposit Company of Maryland and the Great American Insurance Company (hereinafter the Sureties). After it became apparent that the plaintiff would not be able to complete construction of the pipeline within the time required by the contract, the County terminated its services on April 10, 1979. However, the County and the Sureties entered into *448an agreement dated August 9, 1979, whereby the Sureties became the construction contractor. The agreement further provided that the Sureties could engage the plaintiff as the subcontractor to continue with construction of the pipeline. The plaintiff completed construction of the pipeline in 1982.
In August 1982, the plaintiff in its own right and as assignee of the Sureties’ rights, commenced this action against the County, Bowe Walsh and Converse Ward. Essentially, the plaintiff alleged that the delays in construction were caused by the professional negligence and corruption on the part of the County, and both Bowe Walsh and Converse Ward. It is, however, the second amended complaint, drafted in June 1985, which is the subject of the instant appeal. Following a motion by Converse Ward and a cross motion by Bowe Walsh to dismiss the complaint as against them, the Supreme Court, Suffolk County, found that the complaint sufficiently alleged causes of action sounding in professional negligence, negligent misrepresentation and fraudulent concealment, but dismissed the causes of action asserting theories based on fraud, intentional interference with contractual relations and the claim that the plaintiff was a third-party beneficiary of the various contracts between the County, Bowe Walsh and Converse Ward. We will deal with each of these claims seriatim.
The plaintiff’s sixth and seventh causes of action allege, in essence, that both Bowe Walsh and Converse Ward acted negligently in rendering their respective professional services. It is further asserted that the plaintiff relied upon the documents and specifications provided by the defendant engineers in submitting its bid to the County.
The Court of Appeals has observed that accountants may be held liable for professional negligence to noncontractual parties provided, inter alia, that "there must have been some conduct * * * linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance” (Credit Alliance Corp. v Andersen & Co., 65 NY2d 536, 551, mot to amend remittitur granted 66 NY2d 812). However, the courts have expressed a reluctance to extend liability under these circumstances to other professionals (see, Ossining Union Free School Dist. v Anderson LaRocca Anderson, 135 AD2d 518; Viscardi v Lerner, 125 AD2d 662; Widett v United States Fid. & Guar. Co., 815 F2d 885). In Ossining Union Free School Dist. v Anderson LaRocca Anderson (supra), the building owner sought to recover damages for professional negligence from two engineers with whom it was not in privity. This court declined to extend "the exception to *449the general rule” set forth in Credit Alliance Corp. v Andersen & Co. (supra) beyond the accounting profession (Ossining Union Free School Dist. v Anderson LaRocca Anderson, supra, at 521). Therefore, the court erred in denying the motion to dismiss the sixth and seventh causes of action in the second amended complaint.
Similarly, the court erred in not dismissing the eighth cause of action sounding in fraudulent concealment. In the absence of privity of contract, Bowe Walsh and Converse Ward were not under a duty to disclose to the plaintiff that certain subsurface conditions were materially different from those stated in the contract specifications (see, County of Westchester v Welton Becket Assocs., 102 AD2d 34, 51, appeals dismissed 64 NY2d 734, affd 66 NY2d 642). Thus, the plaintiff did not sufficiently plead a cause of action for fraudulent concealment.
The plaintiff’s fourth cause of action alleges that the defendant engineers engaged in a pattern of fraud and deception designed to divert attention from their own corrupt practices. However, in the absence of specific factual assertions as to these allegations, the complaint failed to state a cause of action sufficient to withstand a motion to dismiss (see, CPLR 3016 [b]; Glassman v Catli, 111 AD2d 744).
In the ninth cause of action, the plaintiff alleges that Bowe Walsh and Converse Ward intentionally interfered with its contractual obligations to the County. However, an examination of the complaint reveals that the ninth cause of action vaguely refers to an intentional course of conduct by both Bowe Walsh and Converse Ward designed to induce the County into terminating the construction contract. We find that these allegations are insufficient to withstand a motion to dismiss (see, Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282; Costanza Constr. Corp. v City of Rochester, 135 AD2d 1111). Moreover, the court correctly found that a cause of action for intentional interference with contractual relations was time barred because the construction contract was terminated on April 10, 1979, i.e., more than three years prior to service of the initial complaint in August 1982 (see, CPLR 214 [4]; Kartiganer Assocs. v Town of New Windsor, 108 AD2d 898).
Finally, the plaintiff has interposed a cause of action asserting, inter alia, that it was an intended beneficiary of the various contracts entered into between the defendant County, Bowe Walsh and Converse Ward. However, two of these contracts contain clauses to the effect that no third-party rights accrued therefrom. Where a provision in the contract *450expressly negates enforcement by third parties, that provision is controlling (see, Nepco Forged Prods. v Consolidated Edison Co., 99 AD2d 508). With respect to the remaining contract, i.e., the County/Converse Ward contract, a clause therein provides that Converse Ward’s services would run directly to the County. In view of this language, it is clear that the plaintiff was merely an incidental beneficiary of the services to be performed by Converse Ward, thereby precluding it from claiming third-party beneficiary status (see, Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652). Accordingly, the Supreme Court properly dismissed the plaintiff’s tenth cause of action. Lawrence, J. P., Eiber, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903145/ | In an action to recover damages, inter alia, for breach of a separation agreement, the defendant wife appeals from a judgment of the Supreme Court, Orange County (Zeck, J. H. O.), dated March 13, 1987, which, after a nonjury trial, is in favor of the plaintiff husband and against her in the principal sum of $3,780.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, with costs, and the matter is remitted to the Supreme Court, Orange County, for further proceedings consistent herewith.
Pursuant to the instant separation agreement, the plaintiff husband was entitled to reduce his obligation to pay spousal support of $45 per week if the defendant wife’s "net weekly income” exceeded $65 per week. The reduction in support was to be equal to 50% of the dollar amount that the "net weekly income” exceeded $65 per week. After trial, the court determined that the defendant wife’s net income exceeded the base amount to such an extent that the plaintiff husband was *451entitled to full reimbursement for all of the spousal support that he paid to his wife from August 1977 to March 1979.
The defendant wife contends that the court’s findings are against the weight of the evidence. However, after reviewing the record, we are unable to conclude whether the court’s findings were supported by the credible evidence. In this regard, we note that the court did not make specific factual findings as to the defendant wife’s net salary during the time period in question. Moreover, there was no proof adduced as to the amounts paid by the defendant wife pursuant to her obligation to continue payments on the outstanding indebtedness encumbering the parties’ home and trailer. On remittal, the court must consider these payments in determining the amount of the defendant wife’s net weekly income. Accordingly, the matter must be remanded to the trial court to make new factual findings concerning the amount of the defendant wife’s "net weekly income”.
We have considered the parties’ remaining contentions and find them to be without merit. Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903149/ | Order, Supreme Court, New York County (Paul Wooten, J.), entered August 3, 2012, which, to the extent appealed from as limited by the briefs, directed plaintiff-tenant to file an undertaking equal to three months rent as a condition to granting the tenant’s order to show cause for a Yellowstone injunction, unanimously modified, on the law, the facts and in the exercise of discretion, to reduce the undertaking to one month’s rent, and otherwise affirmed, without costs.
The undertaking in the amount of three months rent was “excessive” given the inadequate proof and otherwise speculative arguments offered by the landlord as to potential damages (see generally Visual Equities v Sotheby’s, Inc., 199 AD2d 59 [1st Dept 1993]; Access Med. Group, P.C. v Straus Family Capital Group, LLC, 44 AD3d 975 [2d Dept 2007]). Not only do factual issues exist as to which party was at fault for the delays in curing the claimed violations, but the record shows the tenant has expended considerable sums of money which have added appreciable value to the premises (see generally Kuo Po Trading Co. v Tsung Tsin Assn., 273 AD2d 111 [1st Dept 2000]; WPA/ Partners v Port Imperial Ferry Corp., 307 AD2d 234 [1st Dept 2003]). Nonetheless, one month’s rent would reflect an appropriate undertaking, as it would be rationally related to the potential damages in the event the injunction is found to have been unwarranted (see 3636 Greystone Owners v Greystone Bldg., 4 AD3d 122 [1st Dept 2004]; Ithilien Realty Corp. v 180 *489Ludlow Dev. LLC, 80 AD3d 455 [1st Dept 2011]) inasmuch as the tenant acknowledged a potential cost of $20,000 to cure, that almost one year has transpired since the notice to cure was served, and the building remains subject to potential violations.
The tenant’s demand for a hearing on the undertaking issue is unavailing as the record affords an adequate basis to determine an appropriate undertaking. Concur—Mazzarelli, J.P., Acosta, Freedman, Richter and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903150/ | In an action for a divorce and ancillary relief, (1) the defendant husband appeals from a judgment of the Supreme Court, Nassau County (McCabe, J.), entered November 12, 1986, which, inter alia, granted the plaintiff wife a divorce and which directed him to pay $1,400 per month in child support and, in addition, to pay tuition for the undergraduate college education of each of the parties’ four children, and (2) the plaintiff wife cross-appeals from so much of the same judgment as denied her an award of counsel fees.
Ordered that the judgment is modified, on the facts, and as a matter of discretion, by deleting the fifth decretal paragraph thereof; as so modified, the judgment is affirmed, without costs or disbursements.
In the absence of "special circumstances”, it is error for a court to direct a parent to pay for the college education of his child (see, e.g., Samuels v Venegas, 126 AD2d 145, 151-152, lv dismissed 70 NY2d 692; Hutter v Hutter, 112 AD2d 543, 544; Connolly v Connolly, 83 AD2d 136, 139-140; Kaplan v Wallshein, 57 AD2d 828, 829; Tannenbaum v Tannenbaum, 50 AD2d 539, 540; Matter of Hawley v Doucette, 43 AD2d 713, 714; see also, Hill v Hill, 121 AD2d 270, 271; Valente v Valente, 114 AD2d 951). We have considered those factors which, as outlined in the cases cited above, relate to the question whether "special circumstances” exist so as to warrant ordering a parent to pay for his children’s college tuition. We note, primarily, that the defendant husband, whose regular child support payments currently consume approximately one half of his net earnings, cannot be considered financially well suited to meet the additional requirement that he pay for the college tuitions of four children. Considering this, among other relevant factors, we conclude that the court improvidently exercised its discretion in directing the defendant to pay for his children’s college tuition.
We have examined the parties’ remaining contentions and find them to be without merit. Mangano, J. P., Bracken, Spatt and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903153/ | In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), entered January 21, 1987, as was in favor of the plaintiff and against them in the principal sum of $54,000.
Ordered that the judgment is reversed insofar as appealed from, with costs to the defendants payable by the plaintiff, and a new trial is granted with respect to the plaintiff’s claims against the defendants.
The plaintiff seeks to recover for injuries allegedly sustained in a motor vehicle accident when the defendants’ automobile crossed a double yellow line, at an allegedly high rate of speed, entered the opposing lane of traffic where the. plaintiff was lawfully proceeding, and struck the plaintiff’s vehicle, propelling it off the highway into a tree. The defendant Dana A. Bushey testified at trial that the accident occurred when he lost control of his car which was traveling at 25 to 30 miles per hour while trying to negotiate a curve on an unfamiliar roadway that was flooded due to a heavy rainfall. A third car, which had been traveling behind the plaintiff, came to rest in contact with the rear of the plaintiff’s car, although the defendant Bushey had not seen, and the plaintiff had neither seen nor felt an impact from the third vehicle. The owner and the operator of this third vehicle were impleaded by the defendants.
Following the defendant Bushey’s testimony, his counsel moved to dismiss the action on the ground that the court *461lacked personal jurisdiction over the defendants. At the court’s suggestion, the plaintiffs counsel had that morning reserved the individual defendant in court with a summons with notice, in order to neutralize the defense of lack of personal jurisdiction pleaded in the defendants’ answer. Since the Statute of Limitations had not yet run, and since the defendant Bushey offered no testimony on the issue during trial, the court dismissed the affirmative defense.
The court also, upon a motion by the third-party defendant, dismissed the third-party complaint.
At the close of the defendants’ case on liability, the court granted the plaintiffs motion pursuant to CPLR 4404 for a judgment as a matter of law on the issue of liability. The court noted that the defendants had produced no expert testimony to connect their allegation of water on the highway and difficulty steering with the happening of the accident so as to diminish the defendants’ responsibility for crossing the center dividing lines and striking the plaintiff, who was traveling lawfully in his own lane. The court stated that the defendants failed to implead the governmental agency that defense counsel had suggested in their opening was responsible for the dangerous condition of the road, so that there was no proof of anyone but the defendants being responsible for the accident.
At the commencement of the damages portion of the trial, the defendants objected to the court permitting the plaintiffs neurologist, Dr. Leonard Langman, to testify on the ground that (1) the defendants had received his report only three weeks before trial, and had rejected it, (2) the defendants had never before been informed of Dr. Langman’s existence, and (3) Dr. Langman’s report listed three new injuries. Finding that the plaintiffs bill of particulars adequately alerted the defendants to the diagnoses contained in Dr. Langman’s report, and that the defendants had been remiss in failing to move for relief on this issue prior to jury selection, the court permitted Dr. Langman to testify.
During the damages portion of the trial, the plaintiff testified to having sustained injuries to his head, face, teeth, neck, lower back and feet that continued to date. His neurologist, Dr. Langman, testified that he had examined and treated the plaintiff regularly for over two years for his head, neck and back complaints, that the plaintiffs injuries had been caused by the accident, and that they were permanent. The defendants produced no witnesses on the issue of damages.
*462The defendants’ motion to dismiss the plaintiffs complaint for failure to prove a serious injury as defined by the Insurance Law was denied and the trial court charged the jury without including the instruction on the threshold that the defendants had requested. The jury returned a unanimous verdict for the plaintiff in the principal sum of $54,000.
On appeal the defendants allege that the trial court erred (1) in failing to dismiss the plaintiffs complaint on the ground that there was lack of personal jurisdiction over the defendants, (2) in directing a verdict for the plaintiff on the issue of liability, (3) in permitting the plaintiffs neurologist to testify, and (4) in refusing to dismiss the complaint because the plaintiff failed to prove a serious injury as defined by the Insurance Law, or in the alternative, in declining to submit the threshold issue to the jury. The defendants also allege that the verdict on damages was grossly excessive. We consider the arguments seriatim.
By re-serving the defendants in court before the expiration of the Statute of Limitations, the plaintiff cured any jurisdictional defect as to both the individual defendant and the defendant DeBushey Coach, Ltd., of which the individual defendant was a principal (see, Helfand v Cohen, 110 AD2d 751).
Moreover, under the exchange of medical information rules contained in 22 NYCRR 672.2, 672.7 and 672.8, the Judge presiding at a trial, "in the interests of justice and upon a showing of good cause”, may permit the testimony of a physician whose report was not timely exchanged. In the instant case the Trial Judge properly exercised his discretion and permitted Dr. Langman to testify in light of the facts that (a) the defendants had made no motion with respect to Dr. Langman’s report before midtrial, (b) they, in any event, had had a physical examination of the plaintiff subsequent to receipt of Dr. Langman’s report, (c) Dr. Langman claimed to be the plaintiff’s treating neurologist, and (d) his basic findings did not diverge from those outlined in the plaintiff’s bill of particulars.
We conclude however, that the trial court erred in granting the plaintiff’s motion for judgment as a matter of law in his favor on the issue of liability since the defendant Bushey had come forward with an explanation for his conduct (Pfaffenbach v White Plains Express Corp., 17 NY2d 132; Klein v Klein, 101 AD2d 828). The court further erred in failing to submit the threshold issue as to whether plaintiff had suffered *463a "serious injury” to the jury when the evidence produced at trial raised questions of fact as to whether the plaintiff had suffered such an injury under the Insurance Law. While the plaintiff failed at trial to prove a "significant limitation of use of a body function or system”, he did present evidence to suggest that he can only move certain parts of his body with pain, and that he had constant pain in his head and teeth. "Although pain can form the basis of a serious injury within the meaning of the No-Fault Law * * * whether it does is a question of fact for the jury” (Kaiser v Edwards, 98 AD2d 825, 826; Slack v Crossetta, 75 AD2d 809, 810). Moreover, while Dr. Langman testified that the plaintiff’s injuries were permanent, this allegation of permanency should have been considered by the jury within the context of a charge on the No-Fault Law (see, Quaglio v Tomaselli, 99 AD2d 487, 488). Since there must therefore be a new trial, we do not reach the issue of the size of the verdict.
Moreover, since no argument has been raised regarding the propriety of the trial court’s dismissal of the third-party action, that portion of the judgment will not be disturbed (see, Wilson v Mechanical Orguinette Co., 170 NY 542, 553). Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903154/ | In an action, inter alia, to recover damages for defamation and conspiracy, the plaintiff appeals from an order of the Supreme Court, Queens County (Leviss, J.), entered November 17, 1986, which granted the defendant’s motion to dismiss the complaint for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
The plaintiff’s claim arises out of legal representation which the defendant, an attorney, gave to the plaintiff’s tenant in a nonpayment proceeding which was settled by stipulation on January 2, 1986. The plaintiff alleges that the defendant defamed her and committed conspiracy by causing the Division of Code Enforcement of the New York City Department of Housing Preservation and Development to place violations for failure to provide heat and hot water against her premises after January 2, 1986. Those same premises, the plaintiff contends, were the subject of the January 2, 1986 stipulation wherein the tenant agreed thereafter to furnish her own heat and hot water.
Each cause of action pleaded by the plaintiff is deficient on its face. In the portion of the pleading which alleges libel, the plaintiff concedes that the offensive violations were in fact *464placed against her property. She therefore admits the truth of the allegedly defamatory words, which is a complete defense to an action in defamation. In addition the plaintiff fails to plead special damages. The pleading is therefore defective on its face.
The cause of action alleging conspiracy by the defendant with his clients to cause violations to be placed against the plaintiff’s property fails to set forth any claim of the commission of an unlawful act. The defendant availed himself of a procedure under the New York City Housing Maintenance Code for obtaining an inspection. Moreover, the law of this State does not recognize a substantive tort of conspiracy.
We have examined the plaintiffs remaining cause of action to recover damages for violation of the ethical canons, and find it to be facially deficient. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903156/ | In a proceeding pursuant to Executive Law § 298 to review a determination of the respondent New York State Division of Human Rights (hereinafter the division), dated April 30, 1985, which dismissed, after an investigation and upon a finding that no probable cause existed, the petitioner’s complaint of unlawful discriminatory practices based upon the petitioner’s sex and religion, the petitioner appeals, as limited by her brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Marbach, J.), entered November 17, 1986, as dismissed that branch of the petition which was to review the finding of no probable cause with regard to her sex discrimination claim.
Ordered that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.
Contrary to the petitioner’s contention, the division’s investigation was not abbreviated or one-sided, and she was given a full opportunity to submit evidence in support of the claim of sex discrimination. Therefore, the resulting record before the division did afford a reasonable basis for an administrative determination of this claim (see, Matter of Verderber v Roechling Steel, 110 AD2d 705; Matter of Friel v McCall, 109 AD2d 741). Further, it cannot be said that the division’s finding of no probable cause with regard to the petitioner’s sex discrimination claim was unsupported by substantial evidence (see, Matter of Verderber v Roechling Steel, supra; Matter of Friel v McCall, supra).
*465In addition, there is no evidence in the record to support the petitioner’s claim that the division violated lawful procedure (see, Executive Law § 297 [3]; Matter of State Univ. v State Human Rights Appeal Bd., 93 AD2d 742; cf., Matter of Young v Board of Educ., 100 AD2d 515).
We have considered the petitioner’s other contentions and find them to be without merit. Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903155/ | Order, Supreme Court, New York County (Paul Wooten, J.), entered August 3, 2012, which, to the extent appealed from as limited by the briefs, directed plaintiff-tenant to file an undertaking equal to three months rent as a condition to granting the tenant’s order to show cause for a Yellowstone injunction, unanimously modified, on the law, the facts and in the exercise of discretion, to reduce the undertaking to one month’s rent, and otherwise affirmed, without costs.
The undertaking in the amount of three months rent was “excessive” given the inadequate proof and otherwise speculative arguments offered by the landlord as to potential damages (see generally Visual Equities v Sotheby’s, Inc., 199 AD2d 59 [1st Dept 1993]; Access Med. Group, P.C. v Straus Family Capital Group, LLC, 44 AD3d 975 [2d Dept 2007]). Not only do factual issues exist as to which party was at fault for the delays in curing the claimed violations, but the record shows the tenant has expended considerable sums of money which have added appreciable value to the premises (see generally Kuo Po Trading Co. v Tsung Tsin Assn., 273 AD2d 111 [1st Dept 2000]; WPA/ Partners v Port Imperial Ferry Corp., 307 AD2d 234 [1st Dept 2003]). Nonetheless, one month’s rent would reflect an appropriate undertaking, as it would be rationally related to the potential damages in the event the injunction is found to have been unwarranted (see 3636 Greystone Owners v Greystone Bldg., 4 AD3d 122 [1st Dept 2004]; Ithilien Realty Corp. v 180 *489Ludlow Dev. LLC, 80 AD3d 455 [1st Dept 2011]) inasmuch as the tenant acknowledged a potential cost of $20,000 to cure, that almost one year has transpired since the notice to cure was served, and the building remains subject to potential violations.
The tenant’s demand for a hearing on the undertaking issue is unavailing as the record affords an adequate basis to determine an appropriate undertaking. Concur—Mazzarelli, J.P., Acosta, Freedman, Richter and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903158/ | In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Held, J.), dated October 20, 1986, which granted the plaintiff summary judgment in the principal amount of $25,000.
Ordered that the appeal is dismissed, without costs or disbursements.
The record discloses that the plaintiff died prior to service of the motion for summary judgment on his behalf, which is the subject of this appeal, and no legal representative has been substituted for him in this action (see, CPLR 1015 [a]). Therefore, this court has no jurisdiction to determine the appeal, and the judgment granted in his favor is void (see, Catalfamo v Flushing Natl. Bank, 124 AD2d 624; Ludlam Stead v Rezza, 118 AD2d 628; Paul v Ascher, 106 AD2d 619). Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903159/ | Appeal by the plaintiff from a judgment of the Supreme Court, Orange County (Patsalos, J.), dated March 12, 1987.
Ordered that the judgment is affirmed, with costs, for reasons stated by Justice Patsalos in his memorandum decision at the Supreme Court. Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903161/ | Order affirmed without costs and matter remitted to Supreme Court, Chautauqua County, for further proceedings, in accordance with memorandum. All concur, Callahan, J., not participating. Memorandum: We remit the matter to the trial court to determine plaintiff’s petition to modify the judgment of divorce by awarding her sole custody of the parties’ two children. The trial court did not address this issue. (Appeal from order of Supreme Court, Chautauqua County, Hartley, J. — visitation.) Present — Dillon, P. J., Callahan, Pine, Lawton and Davis, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903162/ | In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated May 30, 1986, which denied his motion to dismiss the action on the ground that the complaint was not timely served.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.
The Supreme Court erred in denying the defendant’s motion to dismiss this action based on the plaintiff’s failure to serve his complaint until more than two years after service was required. Even if the plaintiff’s excuse for the delay could be considered reasonable, she has failed to make an adequate showing that her claim has merit. The plaintiff did not submit an affidavit of merit. Furthermore, neither her attorney’s affirmation in opposition to the defendant’s motion nor the complaint, verified by her attorney, which was based, in part, upon information and belief, constitutes a sufficient affidavit of merit. Therefore, they were inadequate to establish a meritorious cause of action (see, Oversby v Linde Div., 121 AD2d 373; cf., Duqmaq v Stewart, 137 AD2d 653). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903163/ | In an action for a judgment declaring that the defendant is not entitled to terminate a lease, the plaintiff appeals from an order of the Supreme Court, Nassau *467County (Roncallo, J.), dated July 1, 1987, which granted the defendant’s motion pursuant to CPLR 3211 to dismiss the complaint.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
On April 4, 1985, the plaintiff entered into a six-year lease with the defendant for the rental of certain commercial premises located at 4109 Hempstead Turnpike, Bethpage, New York. It is alleged by the defendant that the plaintiff had erected an unauthorized shed on the premises. On June 11, 1987, the defendant served on the plaintiff a notice to cure. The printed form was headed "Ten Day Notice to Cure”; however, the typewritten portion directed that the breach be cured by June 16, 1987—five days later.
On June 16, 1987, the plaintiff moved by order to show cause for a Yellowstone injunction (see, First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630, rearg denied 22 NY2d 827) tolling the period to cure and preliminarily enjoining the defendant from terminating the lease. Service was directed to be made on the defendant’s attorneys or on a corporate officer of the defendant on or before June 17, 1987, at 5:00 p.m. It appears that Catherine Quevedo, the sole shareholder, director and officer of the defendant was home on June 16, 1987, all day except for a few hours in the afternoon when her housekeeper was there. Quevedo left her home at 7:15 p.m. and, when she returned at 11:30 p.m., she found the ex parte order together with a summons and complaint "squeezed by the door handle”. Also, the law firm of the defendant was open during normal business hours on June 16, 1987, and June 17, 1987, but service was made by crumpling the papers by the front doorknob sometime between 6:45 p.m. on June 16, 1987, and 8:30 a.m. on June 17, 1987. No attempt at service was made during regular office hours.
On June 18, 1987, the defendant served an answer and a cross motion to dismiss pursuant to CPLR 3211 asserting a lack of jurisdiction. Also on June 18, 1987, the defendant sent the plaintiff a notice of termination extinguishing the tenancy as of June 21, 1987. The plaintiff procured a second order to show cause dated June 22, 1987, returnable on June 29, 1987, seeking the identical Yellowstone relief sought in the prior order. On June 24, 1987, the plaintiff served the Secretary of State with the summons and complaint.
By order dated June 29, 1987, the Supreme Court granted *468the defendant’s cross motion to dismiss under CPLR 3211, and all other applications and motions were denied as academic. The court concluded that jurisdiction had never been obtained over the defendant by virtue of the lack of due diligence and flawed service of the order to show cause dated June 16, 1987.
Initially, we note that service of the June 16, 1987, order to show cause containing the Yellowstone temporary restraining order and a summons and complaint was improper as to both the officer of the defendant corporation and its attorneys. Pursuant to CPLR 308 (4), "nail and mail” service may only be utilized when, with due diligence, it is impossible to serve a party personally or to deliver the papers to a person of suitable age and discretion at the party’s business dwelling or abode with a follow-up mailing. Not only did the process server herein fail to meet the due diligence requirement to entitle him to utilize CPLR 308 (4), but the papers were not "affixed” to the door as required by the statute (see, PacAmOr Bearings v Foley, 92 AD2d 959; Barnes v City of New York, 70 AD2d 580, affd 51 NY2d 906).
As the "nail and mail” method utilized failed to meet the statutory due diligence requirement, Yellowstone relief could not be obtained nunc pro tunc by the second order to show cause obtained on June 29, 1987, since the tenant seeking a toll of the period to cure must obtain a valid preliminary injunction prior to termination of the leasehold (First Natl. Stores v Yellowstone Shopping Center, supra). In this regard, the plaintiff herein is in the same position as the plaintiff in Yellowstone. It failed to procure a valid temporary restraining order before the landlord acted to terminate the tenancy. Since the leasehold was properly terminated in accordance with the terms contained in the lease, it cannot now be revived (see, First Natl. Stores v Yellowstone Shopping Center, supra) in the manner attempted in this case.
The plaintiffs contention that the defendant was bound to honor the injunction notwithstanding the improper service because it was aware of its content is untenable (see, Macchia v Russo, 67 NY2d 592; De Zego v Donald F. Bruhn, M.D., P. C., 67 NY2d 875; Feinstein v Bergner, 48 NY2d 234). Equally unavailing is the plaintiffs argument that the subsequent service of the summons and complaint on the Secretary of State on June 24, 1987, conferred jurisdiction retroactive to June 16, 1987. While it is true that under CPLR 203 (b) (3) the summons will be deemed to relate back to the date of a provisional remedy if the summons is served within 30 days, the jurisdiction obtained on June 24, 1987 could not relate *469back to June 16, 1987, as the injunction issued on that date was void as a result of improper service. The defendant could properly serve the notice of termination on June 18, 1987, since no injunction was in force on that date.
Further, the plaintiffs contention that the notices to cure and terminate were ineffective because they were not signed by the landlord is without merit. In Siegel v Kentucky Fried Chicken (67 NY2d 792), the Court of Appeals held that notices of default and termination must be issued by either the owner or an attorney named in the lease and not by a third-party attorney with whom the tenant had never previously dealt. Unlike Siegel, in this case the notices at issue were issued by the landlord and were in proper form.
The Supreme Court therefore correctly determined that (1) the temporary restraining order was not properly served, and (2) the notices to cure and terminate the lease were validly issued, thereby precluding the plaintiff from curing the alleged breach of the lease. However, notwithstanding the service of the notice of termination, the declaratory judgment action which was commenced by the service of a summons and complaint on the Secretary of State on June 24, 1987, should not have been dismissed. The declaratory judgment action did not depend for its validity on the proper service of the order to show cause but is an existing action which must be resolved on the merits, despite the prior valid service of the notice to terminate the lease and the plaintiffs inability to cure the breach. In Mann Theatres Corp. v Mid-Island Shopping Plaza Co. (94 AD2d 466, 475-476, affd 62 NY2d 930), this situation was explained, as follows: "Under the procedure promulgated in First Nat. Stores v Yellowstone Shopping Center (21 NY2d 630), a tenant may obtain a restraining order which tolls the running of the notice to cure until a declaration of the parties’ rights may be had * * * In Yellowstone (supra), the tenant’s failure to obtain a restraining order until after the cure period had run was fatal since there is no judicial power to revive a cure period that has expired (First Nat. Stores v Yellowstone Shopping Center, supra, p 637). Absent a toll of the cure period, a judicial determination that the lease has been violated leaves the tenant without the ability to cure (Wuertz v Cowne [65 AD2d 528]) if the time to cure has elapsed by the time of decision. Therefore, a tenant who fails to seek a restraining order tolling the time to cure must either cure during the time limited or litigate under the peril that a negative determination of the substantive issues will destroy the leasehold without a further opportunity for cure *470(Schuller v D’Angelo, 117 Misc 2d 528; Sadowsky, Forfeiture of Leases: A Trap for the Unwary, NYLJ, Dec. 31, 1970, p 1, col 4)” (emphasis supplied).
Here, there has been no toll of the period in which to cure, and, consequently, there has been an irrevocable lapse of the time to cure. Therefore, while the plaintiff can litigate the substantive question of the breach of the lease, it can do so only "under the peril that a negative determination of the substantive issues will destroy the leasehold without a further opportunity for cure” (Mann Theatres Corp. v Mid-Island Shopping Plaza Co., supra, at 476).
Accordingly, the defendant’s motion for summary judgment dismissing the declaratory judgment action is denied, and the matter is remitted to the Supreme Court for further proceedings and a determination of the action on the merits. Mollen, P. J., Brown, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5907438/ | Judgment unanimously affirmed, in accordance with the following memorandum: A writ of habeas corpus is not the proper proceeding to challenge the legality of petitioner’s confinement in a special housing unit (People ex rel. Dawson v Smith, 69 NY2d 689). The habeas corpus proceeding was properly converted to a CPLR article 78 proceeding but, because it was instituted more than four months after the determination, the proceeding should have been dismissed as time barred (see, People ex rel. Dawson v Smith, supra, at 691). (Appeal from judgment of Supreme Court, Wyoming County, McCarthy, J. — habeas corpus.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903170/ | In an action, inter alia, for a judgment declaring that the policy of the City Court of the City of Yonkers of requiring rental arrears to be deposited with the court before a trial will be allowed in a nonpayment proceeding on a warranty of habitability defense violated her rights under Real Property Law § 235-b, RPAPL 745 and the Due Process and Equal Protection Clauses of the New York State and Federal Constitutions, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Martin, J.), dated August 20, 1986, which dismissed her complaint.
Ordered that the judgment is affirmed, without costs or disbursements.
Upon a review of the record, we find that this case cannot be maintained as an action for a declaratory judgment. It has long been the policy of this State that a declaratory judgment action cannot be used to circumvent the normal appellate process (Bower & Gardner v Evans, 60 NY2d 781; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352) and should only lie to declare rights before a "wrong” occurs, not to launch a collateral attack with respect to pending litigation (Klostermann v Cuomo, 61 NY2d 525; Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993; New York Pub. Interest Research Group v Carey, 42 NY2d 527). The plaintiff here could have moved to vacate her default in a summary eviction proceeding pending against her, and could have appealed from a denial of such a motion, and thus could have adequately addressed the issues presented in this action. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903172/ | In a negligence action to recover damages for personal injuries, the defendant Welsbach Electric Corporation (hereinafter Welsbach) appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), entered May 14, 1986, which, upon the plaintiff’s motion to set aside as inadequate a jury verdict in the principal sum of $65,000 for pain and suffering, granted the motion and ordered a new trial on the issue of damages only unless Welsbach stipulated to the entry of a judgment in favor of the plaintiff in the principal sum of $125,000.
478
Ordered that the order is reversed on the facts, with costs, the motion is denied, the verdict is reinstated and the matter is remitted for entry of a judgment in accordance with the jury verdict.
This action arises from an automobile accident where Welsbach’s truck struck a wood plank which, in turn, struck the plaintiff, a pedestrian. The plaintiff, a 68-year-old woman, was hospitalized for 12 days and was given a discharge diagnosis of a fractured wrist, fractured foot and "multiple injuries”. The only injury disputed at trial was an alleged "herniated disk [sic]” which the plaintiff contends was caused by the accident.
The trial court set aside the $65,000 verdict based solely upon the uncontradicted evidence of "carpal tunnel syndrome”, a complication of the type of wrist fracture suffered by the plaintiff. The condition was correctable by surgery which the plaintiff declined. Furthermore, evidence was adduced from which the jury could reasonably have concluded that the back condition complained of by the plaintiff was preexisting and/or a natural consequence of the aging process.
It is well settled that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see, Jandt v Abele, 116 AD2d 699; Senko v Fonda, 53 AD2d 638). On the record before us, the $65,000 awarded by the jury neither is so inadequate as to shock the conscience of this court (see, e.g., Maze v DiBartolo, 130 AD2d 720; Knight v Long Is. Coll. Hosp., 106 AD2d 371; O’Connor v Roth, 104 AD2d 933, appeal dismissed 64 NY2d 934), nor "deviates materially from what would be reasonable compensation” (cfi., CPLR 5501 [c]). Therefore, the court improperly exercised its discretion in setting aside the verdict as inadequate. Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903174/ | In an action to recover damages for goods sold and delivered, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Cannavo, J.), entered April 17, 1987, as denied its motion for summary judgment on the complaint.
Ordered that the order is reversed insofar as appealed from, *480with costs, the motion is granted and the defendant’s counterclaims are severed.
The plaintiff commenced this action to recover over $33,000 for goods sold and delivered to the defendant. The defendant’s verified answer interposed affirmative defenses and counterclaims based upon an alleged misrepresentation by the plaintiff as to an exclusive distributorship agreement between the parties.
We find that the defendant failed to produce sufficient evidentiary proof in admissible form to defeat the plaintiff’s motion for summary judgment on the complaint (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).
The defendant does not dispute the price of the goods, that they were ordered by the defendant from the plaintiff, that they were delivered to the defendant without objection, and that the defendant never remitted payment. The mere assertion of counterclaims does not prevent the granting of summary judgment on the complaint (see, Pease & Elliman v 926 Park Ave. Corp., 23 AD2d 361, affd 17 NY2d 890).
Where, as here, a defendant has failed to show that its damages on the counterclaims would equal or exceed the amount demanded in the complaint and that the counterclaims are so inseparable from the plaintiff’s cause of action that entry of judgment thereon would prejudice the defendant, summary judgment should not be withheld from the plaintiff (see, Dalminter, Inc. v Dalmine, S.p.A., 29 AD2d 852, 853, affd 23 NY2d 653). We note that the defendant’s mere conclusory and unsubstantiated assertion that discovery is necessary to enable it to establish the amount of its damages is unavailing (see, Friends of Animals v Associated Fur Mfrs., supra, at 1068). Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903441/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Di Tucci, J.), rendered October 23, 1984, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence, when viewed in a light most favorable to the People, was legally sufficient to support the defendant’s conviction (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
We have considered the defendant’s other contentions and find them to be without merit (see, People v Rivera, 137 AD2d 634). Brown, J. P., Kunzeman, Hooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823539/ | Vapor phase oxidation. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903175/ | In a negligence action to recover damages for personal injuries, the defendants Offen and Oakwood Village Association appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rader, J.), dated December 2, 1986, as denied their motion to compel the plaintiff to provide "proper medical authorizations not limited in time”.
Ordered that the order is affirmed insofar as appealed from, with costs.
We find that the Supreme Court did not abuse its discretion in denying the defendants’ motion to compel the plaintiff to *481provide authorizations for the release of medical records pertaining to the plaintiff’s preexisting psychiatric disorder.
The plaintiff was struck by an automobile operated by the defendant Offen and owned by the defendant Oakwood Village Association while crossing an intersection in Kings County. He commenced the instant action to recover damages for injuries he sustained as a result of the defendants’ alleged negligence. The plaintiff did provide authorizations for the release of medical records from the date of the accident to the present time. While the plaintiff makes no claim for aggravation of a preexisting emotional or mental condition, nevertheless, the defendants seek information pertaining to the plaintiff’s mental condition during the period of time preceding the accident. This is neither material nor necessary to the defense of this action and the motion to compel disclosure was, therefore, properly denied (see, CPLR 3101 [a]; Cooperstein v Patrician Estates, 97 AD2d 426; Andrew F. Capoccia, P. C. v Spiro, 88 AD2d 1100). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/198291/ | 165 F.3d 93
BOSTON MUTUAL INSURANCE COMPANY, Plaintiff, Appellee,v.NEW YORK ISLANDERS HOCKEY CLUB, L.P., Defendant, Appellant,v.Blumencranz, Klepper, Wilkins & Dubofsky, Ltd., d/b/a BWDGroup, Ltd., Third-Party Defendant, Appellee.
No. 98-1456.
United States Court of Appeals,First Circuit.
Heard Sept. 17, 1998.Decided Jan. 19, 1999.
Ted Poretz with whom Steven D. Guggenheim, Alyson M. Weiss, Wende S. Ascher, Richards & O'Neil, LLP, Charles M. Campo, Jr., and Kassler & Feuer, P.C. were on brief for New York Islanders Hockey Club, L.P.
Alan G. Miller with whom Thomas M. Elcock and Morrison, Mahoney & Miller were on brief for Boston Mutual Insurance Company.
Barbara A. Sheehan with whom Michael T. Walsh, Maura Bleichert Lee and Walsh & Sheehan, LLP were on brief for Blumencranz, Klepper, Wilkins & Dubofsky, Ltd.
Before BOUDIN, LYNCH and LIPEZ, Circuit Judges.
BOUDIN, Circuit Judge.
1
On or about November 14, 1994, the New York Islanders Hockey Club (the "Islanders") submitted an application to Boston Mutual Insurance Company ("Boston Mutual") and various Lloyd's of London underwriters to insure its star player, Brett Lindros, for temporary total disability as part of the National Hockey League's group insurance plan. The Islanders failed to disclose in the application that, before becoming a member of the team, Lindros had sustained three concussions within a span of a little more than a year, that he had received medical treatment for each of these head injuries, and that he had experienced headaches and dizziness from these episodes.
2
The facts as to Lindros's history of head injuries are uncontested. In September 1992, Lindros suffered head trauma while trying out for the Canadian National team. He experienced temporary impaired vision and a nagging headache for most of the day. Dr. Paul Thorne, a physician for that team, examined Lindros, finding that the left side of his visual field was "abnormal." Dr. Thorne read a CT scan of Lindros's brain to show signs of brain edema, although he later revised his interpretation of the CT scan to normal after obtaining the radiologist's expert judgment. Dr. Thorne discussed with Lindros's father the risks of reinjury and told Lindros to refrain from full-contact hockey for a week.
3
Sometime in November 1992, Lindros sustained a second head injury while playing for the Kingston Frontenacs. In the heat of a game, after his helmet had fallen off, he was body-checked by an opposing player and his head banged against the boards. After the game, Lindros complained of impaired vision. On the suggestion of his mother, who is a nurse, Lindros visited Kingston Hospital. After being examined by medical staff in the emergency room, he was instructed to avoid physical contact for seven days. This incident is documented by Dr. Thorne accordingly: "Nov[ember] 92--dizzy, hit l[eft] temple, l[eft] homonymous hemianopsia 30-60 minutes."
4
Lindros suffered a third blow to the head while playing for Team Canada in Norway in November 1993, when he was again "taken into the boards." Feeling "disoriented" and "fuzzy," he left the game but later returned to play. Afterward, he was diagnosed by a hospital therapist with "concussive head injury from contact [with] boards/dasher." MRI and EEG tests two weeks later revealed no abnormalities, and Dr. Thorne authorized Lindros to play in an upcoming tournament but warned Lindros that "the risks still, despite [his recovery], of further concussion is slightly higher," and that in his view "the more concussions he has, there is a risk of permanent brain damage when that happens."
5
The Boston Mutual application, which the Islanders completed in 1994 to secure coverage for Lindros, posed a series of medical questions in two different parts; it specified that part I was to be completed "by" the player and a designated club official and part II "by" the player and club physician. The part I questions asked inter alia what the club knew about past injuries to the player (directing that the club, its physician and trainer "must be consulted") and was to be signed by someone on behalf of the club; part II asked detailed medical questions and was to be personally signed by the player and club physician. In fact, the team trainer, Edward Tyburski, answered all of the questions on the application without first consulting the club physician, Dr. Gerald Cordani, or Lindros himself. Lindros and Dr. Cordani simply signed the relevant forms in the appropriate places, as requested by the Islanders, apparently without verifying the accuracy of the answers, as the trainer had requested them to do.
6
The completed application did not disclose any of Lindros's three prior concussions even though a number of questions--if answered accurately--called for such disclosures. In particular, question (5)(b) of part I asked whether the club knew if Lindros had experienced any pain or discomfort for which he sought medical advice or treatment within the previous year; the form asked for details if the applicant answered in the affirmative. The Islanders's answer noted only Lindros's January 1994 knee sprain. The club's own physical examination of Lindros in September 1994 had apprised it of at least one of his prior concussions.
7
Similarly, none of Lindros's concussion-related examinations were revealed by Lindros or the club doctor in response to question 4(a) of part II, which asked if Lindros had undergone a nonroutine examination by a physician within the past three years (only the knee injuries were disclosed in response). Although question 5(g) of part II inquired as to whether Lindros had ever had any known indication of or been treated for dizziness or headache, the application answered "no." There were other seemingly inaccurate answers but the district court declined to rely upon them, saying that they had not been timely identified as errors.
8
Lindros retired at the end of 1995 after suffering three more serious concussions in short succession while playing as an Islander. Shortly thereafter, the Islanders filed a claim under the insurance policy, seeking to recover approximately $4.3 million--the bulk of Lindros's salary for the period remaining in his 5-year contract term. According to the policy, once a deductible is met and an insured player misses 30 consecutive regular season games due to a disability, the policy reimburses the team for 80 percent of the player's salary during his disability. The claim was denied by the insurers on the ground that the Islanders failed to reveal relevant information on their insurance application by omitting Lindros's history of prior head injuries.
9
Boston Mutual then commenced this action to rescind the policy. The Islanders counterclaimed for payment under the policy and impleaded third-party defendant Blumencranz, Klepper, Wilkins & Dubofsky, Ltd. ("BWD"), the National Hockey League's insurance broker that administers the insurance program. The Islanders alleged, inter alia, that BWD as agent breached its duty of care, assertedly owed to the Islanders, by failing to forward to Boston Mutual Lindros's 1994 team physical which indicated that he had had at least one concussion.
10
After discovery, Boston Mutual and BWD moved for summary judgment. The district court granted the motions. It rejected recovery under the policy, holding that the Islanders intended to deceive the underwriters and, alternatively, that the Islanders's misstatements had the effect of increasing the insurers' risk of loss. On the Islanders's claim against BWD, the court said that BWD's failure to verify the accuracy of the application or submit documentary materials on the Islanders's behalf did not breach any putative duty of care. The Islanders now appeal.
11
We review the district court's entry of summary judgment de novo, viewing the evidence in the light most favorable to the Islanders. See Iglesias v. Mutual Life Ins. Co. of New York, 156 F.3d 237, 239 (1st Cir.1998). The policy at issue is governed by Massachusetts law, which permits an insurance company to avoid a policy based on the misrepresentation of the insured, if "such misrepresentation or warranty is made with actual intent to deceive, or ... the matter misrepresented ... increased the risk of loss." Mass. Gen. Laws ch. 175, § 186. If either prong of the test is satisfied, an insurer may rescind a policy.1
12
The application did contain misrepresentations: as already described, it failed to reveal the three head injuries that occurred in 1992 and 1993 even though disclosure was clearly called for by several of the questions. Whether the false answers were given with actual "intent to deceive" or the false answers "increased the risk of loss" are more difficult questions. We begin with the district court's determination that actual intent to deceive was established as a matter of law.
13
In resolving the issue, our first problem is to decide what is meant by the phrase "actual intent to deceive" as used in the Massachusetts statute. Massachusetts law sometimes appears confusing on this issue, but a careful reading of the cases reveals a pattern to which most of the language and outcomes can be fit. Of course, the Massachusetts Supreme Judicial Court has the last word on this issue; but in the meantime, we think a brief discussion may be helpful to district courts faced with this issue.
14
In general, a false answer does not itself automatically prove deceitful intent--the mistake could easily be a reasonable one or merely negligent.2 At the other end of the spectrum, a false statement in an insurance policy, known by the applicant to be untrue and deliberately intended to induce reliance on the false statement, indicates actual deceit. See Danca v. Taunton Savings Bank, 385 Mass. 1, 429 N.E.2d 1129 (Mass.1982). The real difficulty lies between these end points, especially with false statements that might be described as reckless.
15
We agree with the district judge that actual deceit may exist in certain cases where an applicant makes a false statement without actual knowledge of its falsity.3 Imagine a case where--although not certain that his answers are false--an applicant knows full well that he is ignorant as to their truth or falsity and intends to deceive by conveying a false impression that he believes the answers to be true. Cf. United States v. London, 66 F.3d 1227, 1241 (1st Cir.), cert. denied, 517 U.S. 1155, 116 S.Ct. 1542, 134 L.Ed.2d 646 (1996) (standard "willful blindness" instruction).
16
Yet in other cases, an applicant's false statement might be reckless, even suggestive of fraud, but fall short of compelling an inference of deliberate deception or bad faith. Put more simply, the recklessness rubric may cover some cases in which the applicant is actually deceitful but also others in which he is simply careless in the extreme. In the latter instance, Massachusetts does not impute actual deceit as a matter of law. Cf. Sullivan v. John Hancock Mutual Life Ins. Co., 342 Mass. 649, 174 N.E.2d 771, 774 (Mass.1961); McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 117 N.E. 836 (Mass.1917).
17
Turning to the present facts, we agree with the district judge that the Islanders's conduct was indisputably reckless in the sense that it was careless in the extreme. But whether a jury would be compelled to conclude that "the Islanders" consciously conveyed a false impression is a more difficult issue, especially because we are dealing with the state of mind of three different individuals who knew only different parts of the puzzle: the trainer who completed the application but whose state of knowledge as to the past concussions is unclear, and Lindros and the club doctor who knew more but may never have read the application.
18
The gap as to subjective intent might be filled by a more detailed assessment, but this course is unnecessary given the district court's alternative ground for summary judgment, namely, its conclusion that the false statements were material as a matter of law under section 186. "Materiality" may mean different things in different contexts. But the Massachusetts statute provides a definition to focus the inquiry: a false answer is material under section 186 if "the matter misrepresented ... increased the risk of loss" for the insurer. Mass. Gen. Laws ch. 175, § 186.
19
An understanding of why this requirement exists informs its interpretation. On this branch of the Massachusetts statute, an innocent or merely carelessly false statement may avoid the policy. Absent actual deceit, the materiality requirement limits avoidance to cases where an accurate answer could reasonably have affected an insurer's choices--for example, whether to insure the applicant, whether to impose exclusions, whether to charge a higher premium--decisions largely governed by perceptions as to the likelihood and magnitude of loss.
20
At the same time, the statute does not go so far as to require proof by the insurer that it would have acted differently (although such proof certainly tends to establish materiality, e.g., Barnstable County Ins. Co. v. Gale, 425 Mass. 126, 680 N.E.2d 42 (Mass.1997)). Where the misstatement would "naturally influence" the judgment of the underwriter, id. at 44, it may be material without proof that the insurer would ultimately have refused to insure the applicant or would have charged more for the insurance.4 This objective definition is broadly consistent with the way "materiality" is defined in other contexts. See, e.g., United States v. Corsino, 812 F.2d 26, 30 (1st Cir.1987) (finding statement material for purposes of federal anti-fraud statute if it has a "natural tendency to influence ... a governmental function").
21
Whether a misstatement increases the insurer's risk of loss "is ordinarily a question of fact." Keefe v. John Hancock Property & Cas. Ins. Cos., No. 9429, 1997 WL 733843, at * 4 (Mass.App.Div. Nov.17, 1997). Nevertheless, the issue is often resolved as a matter of law under Massachusetts law where the health condition or occurrence falsely concealed is objectively serious enough that no reasonable person could doubt that it increased the risk of loss.5 If the cases are sometimes hard to reconcile,6 this is partly because they cover almost a century of changing medical knowledge and partly because of variations in the background facts (e.g., what was asked, what was disclosed, and in what circumstances).
22
Here, the primary witness for the insurers as to risk was Dr. John Brennan, a consulting physician to the National Hockey League's underwriters. Dr. Brennan opined by affidavit that had he known of Lindros's prior injuries, he would have advised the insurers at a minimum to exclude insurance coverage for head injuries and brain damage. His deposition indicated that repeated head injuries can produce cumulative brain damage. And this testimony is consistent with the opinion expressed by Dr. Thorne, one of Lindros's physicians, regarding the risk of permanent damage from repeated injury.
23
Yet Dr. Brennan was a less-than-ideal witness for the insurers in several respects: he does not specialize in neurology and his experience with repeated head trauma apparently involved boxers exclusively (for whom cumulative effects are well documented but whose repetitive head trauma could be distinguished from the kind of less frequently repeated injury suffered by hockey players). And although Dr. Brennan testified to his understanding that the effect of brain injuries can be cumulative, he did not claim a close acquaintance with the scientific literature on the subject.
24
The Islanders's own expert, Dr. Robert Cantu, had strong qualifications and directly disputed the proposition that cumulative brain damage necessarily results from repeated injury of the kind suffered by hockey or football players (rather than boxers). Although impeached to some extent by his own previous writings, Dr. Cantu said that it depends on the individual whether such cumulative effects will be manifested. And in Brett Lindros's case specifically, he found no evidence of cumulative damage from examining his medical records.
25
However, what Dr. Cantu did not dispute is the statistical conclusion, exemplified by a study of "several thousand high school football players" finding that players who had sustained one concussion were four times more likely to suffer another than those players who had never had one. Whether such data is a function of some athletes' more aggressive tactics (as Dr. Cantu himself believes), their greater susceptibility based on past injuries, or merely an individual predisposition to head injury matters not. It is enough that the defendant's own expert effectively conceded that prior concussions have been shown significantly to increase the risk for the class.
26
The question remains whether the increased risk should be disregarded if, as the Islanders claim to be true, the insurers would in fact have issued the same policy for Lindros, without any exclusion, and without any change in premium, even if they had known all of the information about the prior concussions. The insurers offered affidavit evidence that the information would or could well have altered the outcome; but the affiant himself had admitted in deposition that coverage had been granted without further investigation to 20 or more previously concussed players; and a separate study offered by the Islanders found no case, among a large sample, where a denial or exclusion under this policy had been based on such a disclosure.
27
There are various reasons why a player might be covered without any change in the policy despite increased risk: policies "group" risks, actuaries draw classification lines at different points, and insurers who have a major continuing policy covering an important sports industry have plenty of reasons to be accommodating to the insured teams. In this case, the evidence of past practice does not raise a disputable issue as to whether the objective risk was increased. It certainly does raise the question whether the new information would have altered the insurers' response to the application.
28
The Massachusetts statute on its face makes proof of objective risk sufficient, and the cases look in this direction although none is conclusive. See note 4, above. Further, given a false application, there are reasons to avoid a retrospective inquiry that can rarely be answered with perfect confidence: here, for example, it is not clear that the underwriters had ever insured a player with as many as three prior concussions and the several troubling symptoms that accompanied them in Lindros's case. Under Massachusetts law, it is enough that the application was false in substantial respects and that the information omitted did materially increase the risk to the insurer.7
29
A final issue remains. The Islanders argued that the trial court erred by entering judgment in favor of BWD because the evidence permitted a jury to find that BWD breached its alleged duty of care to the Islanders when it failed to forward Lindros's 1994 team physical to the underwriters. The physical would have shown at least one prior concussion and--if forwarded--would have provided the insurers with some additional warning.
30
The district court properly found that, even assuming BWD was the Islanders's agent, no rational jury could conclude that BWD failed to fulfill its obligation to the Islanders. It is undisputed that BWD (as the National Hockey League's broker) informed the Islanders's own insurance broker, Sterling & Sterling, that team physicals were no longer required after January 1993, and that BWD also relayed that change of policy to the Islanders directly. Although BWD occasionally forwarded team physicals after this date, it was under no obligation to do so.
31
Once BWD returned Lindros's 1994 team physical to the Islanders, citing the rule change, the Islanders never requested that BWD send it on to the underwriters. As the trial court determined, BWD had no independent duty to confirm the veracity of the statements contained in the Islanders's applications for the insurance coverage and did not sign the forms; it merely fulfilled the administrative task of checking to see if the questions asked on the forms had all been answered.
32
Affirmed.
1
One case says that to prevail, an insurer must show both actual intent to deceive and show that the deception was material (i.e., that it increased the risk of loss), see Employers' Liability Assurance Corp. v. Vella, 366 Mass. 651, 321 N.E.2d 910, 913 (Mass.1975). However, the statutory language is clearly disjunctive and is clearly so treated in most cases
2
See Andover Newton Theological Sch., Inc. v. Continental Cas. Co., 409 Mass. 350, 566 N.E.2d 1117, 1118-19 (Mass.1991); Rappe v. Metropolitan Life Ins. Co., 322 Mass. 438, 77 N.E.2d 641, 642 (Mass.1948)
3
See Nickerson v. Matco Tools Corp., 813 F.2d 529, 530 (1st Cir.1987) (trade deception); Powell v. Rasmussen, 355 Mass. 117, 243 N.E.2d 167, 168 (Mass.1969) (deceit in sale of corporate stock)
4
See Shapiro v. American Home Assurance Co., 584 F.Supp. 1245, 1249-50 (D.Mass.1984) (finding misstatement to be material without proof of subjective "reliance"); see also Doulames v. Prudential Insurance Co., 1 Mass.App.Ct. 871, 307 N.E.2d 17, 18 (Mass.App.1974) (holding that increased risk may be inferred either from objective scientific evidence or from testimony as to insurer's practice); Locke v. Royal Ins. Co., 220 Mass. 202, 107 N.E. 911, 912 (Mass.1915) (same)
5
See, e.g., Northwestern Mutual Life Ins. Co. v. Iannacchino, 950 F.Supp. 28 (D.Mass.1997) (serious depression); Pahigian v. Manufacturers' Life Ins. Co., 349 Mass. 78, 206 N.E.2d 660 (Mass.1965) (Hodgkin's disease); Ayers v. Massachusetts Blue Cross, Inc., 4 Mass.App.Ct. 530, 352 N.E.2d 218 (Mass.App.1976) (cancer symptoms)
6
See, e.g., Kaufman v. National Casualty Co., 342 Mass. 412, 174 N.E.2d 35 (Mass.1961) (holding that a history of heart attacks was not material as a matter of law); see also Schiller v. Metropolitan Life Ins. Co., 295 Mass. 169, 3 N.E.2d 384, 388 (Mass.1936) (listing serious medical conditions that are not material as a matter of law)
7
We need not decide whether a different outcome might be urged where the misstatement was entirely innocent or where conclusive evidence (e.g., a formal classification) showed indisputably that an increased risk would not have mattered. Neither of these circumstances is present in this case | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2073315/ | 33 Wis. 2d 552 (1967)
GRIEB, Appellant,
v.
CITIZENS CASUALTY COMPANY, Respondent.
Supreme Court of Wisconsin.
January 3, 1967.
January 31, 1967.
*554 For the appellant there was a brief by Arnold, Murray & O'Neill of Milwaukee, and oral argument by Suel O. Arnold.
For the respondent there was a brief by Stanley F. Schellinger, attorney, and James G. Doyle of counsel, both of Milwaukee, and oral argument by Mr. Doyle.
HALLOWS, J.
In October of 1957, Donald L. Grieb entered into a contract with the Milwaukee Park Commission under which he was to prepare plans and specifications *555 for and supervise the construction of a botanical conservatory in Mitchell Park, Milwaukee. A unique conservatory ultimately was constructed which consisted of three 80-foot-high metal and glass geodesic domes connected by a one-story structure. The contract required Grieb to maintain in force an architect's professional liability errors-and-omissions policy during the planning and construction of the conservatory. The policy issued by Citizens provided it would pay all sums Grieb might become legally obligated to pay as damages because of liability arising out of any act of negligence, error, mistake or omission in rendering professional architectural services.[1] Citizens also undertook to defend any suit against Grieb which alleged any act of negligence, *556 error, mistake or omission and sought damages on account thereof. The policy excluded from coverage dishonest, fraudulent, criminal or malicious acts or omissions and those of a knowingly wrongful nature intentionally committed.
During the policy period a taxpayers' suit was commenced against Grieb, Super Sky Products, Inc., and Milwaukee county. The complaint detailed many acts which were allegedly performed in furtherance of a conspiracy between Grieb and Super Sky and intended to give Super Sky an unfair advantage over other bidders for the job of constructing the domes. The complaint sought to void the contract between Super Sky and Milwaukee county, plus damages and other relief.
On this appeal Grieb contends that although the taxpayers' suit was one for conspiracy Citizens had a duty to defend under its indemnity clause, which he claims indemnifies against any act of negligence, error, mistake or omission and is not confined to allegations of such acts in a third-party pleading as is the defense-coverage clause. Because of this he argues Citizens has an implied corollary duty to defend any type of action so long as any act of negligence, error, mistake or omission is committed by him.
We think Citizens' duty to defend under its policy is not so broad as contended for by Grieb. While errors-and-omissions policies for professional men are of relatively recent origin in the insurance industry, the principles governing their construction are the same as those applied to indemnity and liability policies.[2] An errors-and-omissions policy is professional-liability insurance providing a specialized and limited type of coverage compared to general comprehensive insurance. It is designed *557 to insure members of a particular professional group from liability arising out of the special risk such as negligence, omissions, mistakes and errors inherent in the practice of the profession. The coverage generally excludes, as the instant policy does, intentional torts and dishonest, wrongful and malicious acts of commission and omission. These professional-liability policies differ in detail depending upon the company which issues them and are generally called malpractice insurance when issued to members of the healing profession where the exposure is largely bodily injury and errors-and-omissions insurance where the risk is primarily that of damage to intangible property such as coverage for attorneys, insurance agents, and architects.[3]
No claim is made by Grieb on this appeal that Citizens has a duty to defend the conspiracy suit under the express defense-coverage clause in the policy. The duty under this clause, as correctly held by the trial court, is restricted to suits for damages grounded upon, arising out of, or because of acts of alleged negligence, omission, mistake or error. The duty under this clause does not extend to intentional torts such as conspiracy and further more acts constituting a conspiracy are excluded by the exclusion clause even though we construe that cause against the insurer, as we are bound to do.
Whether a third-party suit comes within the coverage of this clause or within the coverage of an implied duty to defend under an indemnity clause depends upon its allegations which are referred to as a general rule as the measure in the first instance. These allegations must state or claim a cause of action for the liability insured against or for which indemnity is paid in order for the suit to come within any defense coverage of the policy *558 unless the express defense coverage is broader. Aitchison v. Founders Ins. Co. (1958), 166 Cal. App. (2d) 432, 333 Pac. (2d) 178. It is the nature of the claim alleged against the insured which is controlling even though the suit may be groundless, false or fraudulent. Wilson v. Maryland Casualty Co. (1954), 377 Pa. 588, 105 Atl. (2d) 304; Wisconsin Transportation Co. v. Great Lakes Casualty Co. (1942), 241 Wis. 523, 6 N. W. (2d) 700; 7A Appleman, Insurance Law & Practice, p. 441, sec. 4683. National Surety Corp. v. Musgrove (5th Cir. 1962), 310 Fed. (2d) 256 (an errors-and-omissions policy). Conversely stated, "the insurer is under an obligation to defend only if it could be held bound to indemnify the insured, assuming that the injured person proved the allegations of the complaint, regardless of the actual outcome of the case," 29A Am. Jur., insurance, p. 565, sec. 1452.
There are at least four exceptions to the general rule determining the extent of the insurer's duty to defend and generally the insurer who declines to defend does so at his peril. These and allied problems are extensively covered in Anno. Liability InsurerDuty to Defend, 50 A. L. R. (2d) 458.
We do not agree that the indemnity clause in Citizens' policy gives rise to a duty to defend and we think Grieb's argument to be fallacious for two reasons: (1) When there is an express undertaking to defend in the policy, such express defense-coverage clause negates any implication of a duty to defend which enlarges or is inconsistent with such coverage; and (2) the indemnity clause does not indemnify against any act of negligence or any omission, error or mistake but against liability for damages because of or arising out of or grounded upon an act of negligence or an act of error, mistake or omission. Unless there is liability for damages based on such acts of omission or commission, there is no duty to pay or indemnify.
*559 Grieb relies on Runyan v. Continental Casualty Co. (D. C. Or. 1964), 233 Fed. Supp. 214, 2 A. L. R. (3d) 1238, 1245, one of the few cases involving an errors-and-omissions policy issued to an architect. But in Runyan the court most liberally construed the pleadings in the suit against the insured. There, a complaint alleging malicious and unjustified interference with the plaintiff's employment contract was considered as a complaint for damages for a wrongful discharge which the architect committed in the course of his duties. Under either theory of pleading the third party could have recovered and under one the insurer would be obligated to indemnify.
In Firco, Inc., v. Fireman's Fund Ins. Co. (1959), 173 Cal. App. (2d) 524, 343 Pac. (2d) 311, also cited by Grieb, the pleadings were doubtful in the sense that an intentional tort was pleaded which was outside the coverage but the facts alleged could support a claim of mere wrongfulness and therefore be within the coverage of the policy. The court, as in Runyan, found a duty to defend. Although we think these cases strain even the plasticity of the third party's allegations and ought not be followed, it must be noted in distinction to the instant case that in both cases a cause of action was found which came at least potentially within the coverage of the policy.
But the conspiracy suit brought by the taxpayers, even under liberal rules of pleading, could not be considered as stating a cause of action for liability for negligence, omissions, mistakes or errors. We think assuming a duty to defend can be implied from the indemnity clause that it must reasonably have some relation to a suit claiming liability for damages because of an act of negligence, error, mistake or omission. It is not sufficient under Citizens' policy that the facts alleged might under other circumstances be characterized as acts of unintentional negligence, error, mistake or omission.
By the Court.Judgment affirmed.
NOTES
[1] "Insuring Agreements
"I. Coverage
"To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of liability arising out of any act of negligence, error, mistake or omission, committed during the Policy Period or prior to the inception date of this Policy, in rendering or failing to render professional architectural services, whether performed by the Insured or by others for whom the Insured is legally responsible, . . .
"II. Defense, Settlement, Supplementary Payments
"With respect to such insurance as is afforded by this Policy, the Company shall: "(a) defend any suit or arbitration proceeding against the Insured which alleges any act of negligence, error, mistake or omission and seeks damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company may make such investigation, negotiation, and settlement of any claim or suit as it deems expedient; . . .
"Exclusions
"This Policy does not apply:
". . .
"(d) to dishonest, fraudulent, criminal or malicious acts or omissions, or those of a knowingly wrongful nature committed intentionally by, or at the direction of the Insured."
[2] See 29A Am. Jur., Insurance, p. 565, sec. 1452; American Policyholders Ins. Co. v. Michota (1952), 156 Ohio St. 578, 103 N. E. (2d) 817; Anno. InsuranceProfessional Liability, 35 A. L. R. (2d) 452.
[3] See articles in The National Underwriter (June 24, 1966), p. 1, and (Aug. 26, 1966), p. 4; Fire, Casualty & Surety Bulletins, Vol. 2, Professional Liability (National Underwriter Co.); 1964 Insurance Law Journal, 461, 467; and 13 Couch (2d), Insurance, p. 605, sec. 48: 161. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903176/ | In an action, inter alia, to foreclose a mechanic’s lien, the plaintiff appeals from so much of an order of the Supreme Court, Rockland County (Edelstein, J.), dated October 27, 1986, as denied his motion to strike the defendants’ demand for a jury trial and denied him permission to inspect the premises. The appeal brings up for review so much of an order of the same court, dated November 20, 1986, as, upon reargument, adhered to the original determination (see, CPLR 5517).
Ordered that the appeal from the order dated October 27, 1986, is dismissed, as that order was superseded by the order dated November 20, 1986, made upon reargument; and it is further,
Ordered that the order dated November 20, 1986 is affirmed insofar as reviewed; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiff herein orally contracted with the defendants to make improvements to their home. When a dispute arose between the parties, work ceased and the plaintiff filed a mechanic’s lien against the property, claiming that $24,085 was still due and owing. Thereafter the plaintiff sued seeking foreclosure or, in the event the lien was declared invalid, for a money judgment. The plaintiff contends that his action is equitable in nature and that the defendants, by asserting legal *482counterclaims in their answer, have waived their right to a jury trial on those counterclaims pursuant to Lien Law § 45. We disagree. Regardless of the plaintiffs characterization of the action, our evaluation of the pleadings convinces us that the action is in essence one for breach of contract and the defendants are therefore entitled to a jury trial on their legal counterclaims (see, Cowper Co. v Buffalo Hotel Dev. Venture, 99 AD2d 19, 21-23).
We find no abuse of discretion in the court’s denial of the plaintiffs request to personally inspect the premises along with his expert. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903177/ | Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 10, 2011, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendant’s motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion denied.
Defendant demonstrated that the injuries plaintiff sustained to his left shoulder and to his lumbar and cervical spines were not serious within the meaning of Insurance Law § 5102 (d). Defendant submitted evidence, including the affirmed reports of a radiologist and an orthopedist, showing that the injuries were not caused by the accident, but were degenerative conditions that preexisted the accident (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).
On this record, triable issues of fact exist. A report of an MRI conducted of plaintiff’s left shoulder on December 15, 2008, only five weeks after the accident, revealed a partial high-grade tear of the supraspinatus musculotendinous junction and a partial intrasubstance tear of the attachment of the infraspinatus tendon, which the radiologist opined were “post-traumatic with [a] high-degree [sic] of certainty.” Elaintiff’s orthopedic *491surgeon, who performed arthroscopic surgery on him on January 27, 2009, observed the relevant musculature with his own eyes, and opined that plaintiff suffered from a torn rotator cuff and impingement causally related to the accident. Although “[a] factfinder could of course reject this opinion” (see Perl v Meher, 18 NY3d 208, 219 [2011]), it cannot be said on this record, as a matter of law, that plaintiffs injuries had no causal connection to the accident.
Plaintiffs evidence showed that he tested positive for an impingement sign test, suffered persistent pain, and continued to exhibit range of motion deficits in his left shoulder even after undergoing arthroscopic surgery (see Paulino v Rodriguez, 91 AD3d 559 [1st Dept 2012]). The physicians also documented limitations in the cervical and lumbar spines (see Jang Hwan An v Parra, 90 AD3d 574 [1st Dept 2011]).
Defendant did not meet his initial burden with respect to plaintiffs 90/180-day claim, since the argument was raised for the first time in his reply papers (see Tadesse v Degnich, 81 AD3d 570 [1st Dept 2011]; McNair v Lee, 24 AD3d 159 [1st Dept 2005]). Since the burden never shifted to plaintiff, it is unnecessary to consider the sufficiency of his evidence in opposition (see Singer v Gae Limo Corp., 91 AD3d 526 [1st Dept 2012]). Concur—Andrias, J.P., Friedman and Freedman, JJ.
Moskowitz and Manzanet-Daniels, JJ., concur in a separate memorandum by Manzanet-Daniels, J., as follows: Defendant demonstrated that the injuries plaintiff sustained to his left shoulder and to his lumbar and cervical spines were not serious within the meaning of Insurance Law § 5102 (d). Defendant submitted evidence, including the affirmed reports of a radiologist and an orthopedist, showing that the injuries were not caused by the accident, but were degenerative conditions that preexisted the accident (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).
Plaintiff, in turn, raised triable issues of fact. The record demonstrates that plaintiff was asymptomatic before the accident. Although plaintiffs physicians did not expressly address the conclusion that the injuries to the left shoulder and cervical spine were degenerative in origin, they attributed the injuries to a different, yet equally plausible cause, namely the accident (see Perl v Meher, 18 NY3d 208 [2011]; Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [2011]; Biascochea v Boves, 93 AD3d 548 [1st Dept 2012]; Williams v Perez, 92 AD3d 528 [2012]; Grant v United Pavers Co., Inc., 91 AD3d 499 [1st Dept 2012]).
In my view, the majority fails to appreciate the breadth of the *492Court of Appeals’ holding in Perl. In Perl, the defendant’s expert opined that the etiology of certain injuries was degenerative. The plaintiffs physician countered that since the plaintiff was asymptomatic before to the accident and had not suffered any prior injuries that would result in the positive radiological findings, the findings were causally related to the accident (18 NY3d at 219). Given the unequivocal holding of the Court of Appeals that proof such as this on a plaintiffs part suffices to raise a triable issue of fact as to causation, our holding in this case ought not be limited in the manner suggested by the majority (see Perl, 18 NY3d at 218-219; Jeffers v Style Tr. Inc., 99 AD3d 576, 577 [1st Dept 2012]; Pannell-Thomas v Bath, 99 AD3d 485 [1st Dept 2012]; Pakeman v Karekezia, 98 AD3d 840, 841 [1st Dept 2012]; Martin v Portexit Corp., 98 AD3d 63, 67-68 [1st Dept 2012]; Davis v Alnhmi, 96 AD3d 507, 508 [1st Dept 2012]; Thompkins v Ortiz, 95 AD3d 418 [1st Dept 2012]; Vaughan v Leon, 94 AD3d 646, 648 [1st Dept 2012]; Biascochea, 93 AD3d at 549; Grant, 91 AD3d at 500). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903178/ | In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Roberto, J.), dated Febru*483ary 10, 1987, which, upon the plaintiffs’ motion for reargument of a prior motion to set aside a jury verdict, granted reargument, and upon reargument, set aside the jury verdict and ordered a new trial of the action.
Ordered that the order is reversed, with costs, the motion for reargument is denied, and the verdict is reinstated.
After a trial in which the jury found in the defendants’ favor, the plaintiffs moved pursuant to CPLR 4404 (a) for an order setting aside the verdict on the ground that there existed "confusion” among the jurors with respect to the court’s charge concerning the concept of comparative negligence. In support of the motion, the plaintiffs annexed the affidavits of 3 of the 6 jurors. In their affidavits, the jurors stated that they believed—based on the court’s charge—that they could have found for the plaintiffs only if they first concluded that the plaintiff Kathleen Wylder was less than 50% negligent in connection with the automobile collision which gave rise to the lawsuit. The Trial Justice, however, denied the plaintiffs’ motion, observing, inter alia, that he himself had questioned the jurors immediately after the verdict was rendered concerning their understanding of the charge on the law and that they had been unanimous in stating that they understood the charge. The court further observed in denying the motion that, in its postverdict comments to the jury, it had mentioned that a $100,000 settlement offer had been made by the defendants and speculated that perhaps the jurors who submitted the affidavits had been motivated by sympathy.
Thereafter, the plaintiffs moved to reargue the court’s denial of their motion. In support of the motion, the plaintiffs submitted the affidavits of two jurors who stated that they had not been motivated by sympathy in submitting their prior affidavits. Upon reargument, the court granted the motion and set aside the verdict. The court was apparently motivated by what it described as similar juror confusion which had occurred in a subsequent, unrelated case involving the same issues of comparative negligence. The record reveals, however, that at no time did the plaintiffs’ counsel raise any objection with respect to the court’s comparative negligence charge nor was it asserted in the subsequent motions to set aside the verdict that the court’s instructions with respect to that issue were erroneous or confusing. The defendants now appeal, arguing that the court improvidently exercised its discretion in setting aside the verdict. We agree.
As this court has recently observed, "[i]n the absence of *484indications that substantial justice has not been done, a successful litigant will be entitled to the benefits of a jury verdict in his or her favor” (Wilson v New York Racing Assn., 129 AD2d 577; see also, Nicastro v Park, 113 AD2d 129). Accordingly, "while a trial court has discretion under CPLR 4404 (a) to set aside a verdict which is clearly the 'product of confusion, or of inadequate deliberation or a compromise’ (R & R Wrecking Co. v City of New York, 53 AD2d 859, 860), such discretion should be exercised cautiously” (Wilson v New York Racing Assn., supra).
Moreover, public policy concerns disfavor the use of juror affidavits for posttrial impeachment of a verdict (see, Kaufman v Lilly & Co., 65 NY2d 449; People v De Lucia, 20 NY2d 275; Russo v Jess R. Rifkin, D.D.S., P. C, 113 AD2d 570). Although under certain circumstances unanimous posttrial juror affidavits may be used to correct errors in reporting a verdict, this exception to the general rule is not intended to encompass jury error in reaching a verdict (see, Pache v Boehm, 60 AD2d 867, 868).
At bar, the trial record is devoid of evidence indicating the existence of juror confusion. Indeed, the Trial Justice himself observed that, when questioned immediately after the rendition of their verdict, the jurors were unanimous in stating that they understood the charge on the law. We note, moreover, that the jury requested no clarification of the court’s instructions during its deliberations, nor did the plaintiffs’ counsel register an objection to the court’s charge with respect to the issue of comparative negligence. Inasmuch as the court’s finding of confusion among the jurors appears to have been based principally upon matters outside the record, we conclude that the court improvidently exercised its discretion in setting aside the jury’s verdict (see, Pache v Boehm, supra). Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903179/ | In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Suffolk County (Fierro, J.), dated May 19, 1987, which, sua sponte, dismissed her complaint for failure to state a cause of action.
Ordered that the order is reversed, with costs, and matter remitted to the Supreme Court, Suffolk County, to address the plaintiff’s motion to dismiss the defendant husband’s affirmative defenses and certain counterclaims.
After initiating an action for a divorce on the ground of cruel and inhuman treatment, in which the defendant’s answer contained affirmative defenses and counterclaims, the plaintiff moved pursuant to CPLR 3211 (a) and (b) to dismiss the affirmative defenses and a number of the counterclaims. Without addressing the relief sought by the plaintiff, the Supreme Court, sua sponte, dismissed the complaint for failure to plead a sufficient cause of action as a matter of law. A court has the authority to review the adequacy of the complaint sua sponte (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:40; see generally, CPLR 3211 [c]), particularly where the plaintiff does not indicate she had any further specific allegations to add to the complaint. The court erred, however, in concluding that the allegations of the complaint failed to state a cause of action for a divorce based on cruel and inhuman treatment (see, Bartal v Bartal, 117 AD2d 698; Pfeil v Pfeil, 100 AD2d 725; Bulger v Bulger, 88 AD2d 895). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903180/ | In an action to recover damages for dental malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Walsh, J.), dated June 19, 1987, as granted the defendant Dr. John Donovan’s motion to vacate his default in answering the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendant Dr. Donovan’s motion to vacate his default in answering is denied.
The record indicates that even though properly served, Dr. *485Donovan neglected to answer the amended complaint and failed to answer two subsequent motions by the plaintiff for leave to enter a default judgment. In addition, Dr. Donovan ignored certified mail sent to him by the plaintiff advising him of the service of process and that a motion for leave to enter a default judgment was pending. This repeated neglect of legal process, which took place over a time span of more than a year, was based solely on Dr. Donovan’s unsubstantiated claim that the plaintiff’s action caused him "severe emotional and psychological problems”. Under these circumstances, the granting of Dr. Donovan’s motion to vacate his default in answering constituted an abuse of discretion as a matter of law (see, Burks v Weiss, 137 AD2d 646; De Leo v Bertucci, 98 AD2d 708; Amity Plumbing & Heating Supply Corp. v Zito Plumbing & Heating Corp., 110 AD2d 863; Zaldua v Metropolitan Suburban Bus Auth., 97 AD2d 842). Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3046835/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3276
___________
United States of America,
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Rodger Roberson, also known *
as Pistol, also known as P, * [UNPUBLISHED]
also known as D, *
*
Defendant-Appellant. *
___________
Submitted: June 8, 2009
Filed: June 22, 2009
___________
Before BYE, HANSEN, and BENTON, Circuit Judges.
___________
PER CURIAM.
Rodger Roberson appeals the district court’s1 sentence of 120 months
imprisonment following his plea of guilty to being a Felon in Possession of a Firearm
in violation of 18 U.S.C. § 922(g)(1). We affirm.
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
I
On October 14, 2007, an off-duty police officer was driving with his girlfriend
in his personal vehicle, a Chevrolet Cavalier, in St. Louis, Missouri. As he was
stopped at a traffic light before entering Interstate 70, the police officer observed a
silver Chevrolet Tracker, operated by Roberson, approach from behind. Roberson did
not know the driver of the Cavalier was a police officer. As they entered the entrance
ramp onto Interstate 70, Roberson pulled next to the Cavalier and retrieved a .38
caliber revolver from inside the car. For no discernable reason, Roberson pointed the
revolver at the passenger window of the Cavalier and fired three times, shooting out
the passenger side window and shooting two holes in the passenger side door of the
Cavalier. Remarkably, the police officer and his girlfriend were not physically
injured. The police officer returned fire, injuring a passenger in the backseat of the
Tracker, and Roberson drove away.
Later that morning, St. Louis police detectives were called to Barnes Jewish
Hospital for a reported gunshot victim. The victim stated that he was riding in the
backseat of a silver Chevy Tracker being operated by Roberson when he was shot.
According to the victim, he, Roberson, and two other people were returning from East
St. Louis, Illinois, and Roberson transported the revolver he used in the shooting
across state lines. Roberson apparently became belligerent at the driver of the
Cavalier, and, despite attempts by the other occupants of the car to calm Roberson
down, he shot at the Cavalier. When interviewed, the other two occupants of the car
confirmed this version of the events.
A review of Roberson’s criminal history revealed that he has previously been
convicted in the Eastern District of Missouri of possession of a firearm with an
obliterated serial number. That conviction stemmed from an incident on May 28,
2006, when police officers attempted to arrest Roberson for traffic violations.
Roberson led the officers on a high-speed chase, which ended with Roberson crashing
-2-
his vehicle. As the officers pulled Roberson from his vehicle, they discovered a .38
caliber revolver with an obliterated serial number. Roberson was sentenced in the
Eastern District of Missouri to ten months imprisonment and two years of supervised
release.
Based on this prior felony conviction, Roberson was indicted with being a felon
in possession of a firearm. Following his indictment, Roberson’s supervised release
for his prior felony conviction was revoked, and he was sentenced to eighteen months
imprisonment. On July 22, 2008, Roberson pleaded guilty to the felon-in-possession
charge. Pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 2K2.1(c)(1)(A), which requires a court to cross reference a defendant’s base offense
level if the defendant used or possessed a firearm in conjunction with another crime
for which the offense level is higher, Roberson’s base offense level was 27,
correlating with the base offense level for attempted murder. Roberson’s offense level
was adjusted down to 24 for his acceptance of responsibility. Roberson’s Criminal
History Category was IV, resulting in part from an increase because Roberson
committed the instant offense within two years of being released from his prior felony
conviction. This created a Guidelines range of 77 to 96 months imprisonment.
Roberson and the government agreed in the plea agreement to argue for a within-
Guidelines sentence to be served consecutively to the eighteen-month sentence
previously imposed for the supervised release violation.
At sentencing, the district judge varied upward and imposed the statutory
maximum of 120 months imprisonment. The court enumerated several reasons for its
sentence:
Usually one prior felony doesn’t like stand out, but here a prior felony
where law enforcement officials attempting to arrest him for violating
traffic laws results in a high speed chase which results in a traffic
accident shows incredible disregard for the safety of law enforcement
and other citizens . . . [A]nd within a matter of months after he is
-3-
released, he commits an act of this violent nature . . . . Protect the public,
I mean one of the hardest things about this is the randomness of the act.
Most crimes are not random. There are very specific victims for very
specific reasons. Rarely do we see such a random act of violence of such
an extreme nature.
...
[H]e has both, a lack of respect for law enforcement evidenced by his
first conviction and the total random act of violence against an ordinary
citizen, both of which had the possibility of death, to roll a car, cause an
automobile accident because he is leaving, fleeing, a traffic stop or to
open fire into a random vehicle. The possibility of death for people just
doing their job or just driving down the street is not an acceptable risk,
and I don’t think the guidelines in this case fully took into consideration
the nature, the short nature, of his history being as violent as it is as risky
to law enforcement and citizens; I mean the ultimate consequence of
losing someone’s life over what, a traffic violation. You didn’t like the
way someone was driving.
The court also noted that one kilogram of heroin or one thousand marijuana plants
would require a mandatory minimum of 120 months imprisonment.
Roberson now appeals, arguing the district court’s upward variance was
unreasonable.
II
We review Roberson’s sentence for an abuse of discretion and consider both
the procedural soundness and substantive reasonableness of the sentence imposed.
See United States v. Zech, 553 F.3d 663, 665-66 (8th Cir. 2009) (standard of review).
Roberson does not argue the district court committed any procedural error, only that
it imposed a substantively unreasonable sentence. We review “the ultimate sentence,
whether inside or outside the guidelines range, for reasonableness under an abuse of
-4-
discretion standard.” United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir.
2009). An abuse of discretion may occur “when (1) a court fails to consider a relevant
factor that should have received significant weight; (2) a court gives significant weight
to an improper or irrelevant factor; or (3) a court considers only the appropriate factors
but in weighing those factors commits a clear error of judgment.” United States v.
Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (internal quotation omitted). A district
court does not automatically abuse its discretion by varying upward from the advisory
Guidelines range. In such cases, we “may consider the extent of the deviation, but
must give due deference to the district court’s decision that the § 3553(a) factors, on
a whole, justify the extent of the variance.” Gall v. United States, 128 S. Ct. 586, 597
(2007).
Roberson argues the district court’s rationale for varying upward was based on
the violent nature of the instant offense and his prior felony conviction, both of which
were already taken into account in calculating his Guidelines range. Additionally,
Roberson argues his sentence creates unwarranted sentencing disparities and was
based on the district court’s improper consideration of mandatory minimum sentences
for drug offenses.
Considering the totality of the evidence, however, we conclude the district court
did not abuse its discretion in sentencing Roberson to the statutory maximum of 120
months imprisonment. The district court concluded the Guidelines did not take into
account Roberson’s violent tendencies, particularly his deliberate disregard for the
safety of others during random acts of violence. While it is true the Guidelines
accounted for the seriousness of the instant offense and Roberson’s recent conviction,
the district court did not abuse its discretion in concluding the Guidelines did not
account for the extreme, dangerous, and random nature of the acts. Specifically,
Roberson embarked on a dangerous high-speed car chase that led to his prior
conviction, and, within months of being released from prison for that offense, he
attempted to kill two people in another vehicle apparently because he was upset at the
-5-
manner in which they were driving. Moreover, given the danger Roberson poses to
society, his 120-month sentence does not create unwarranted sentencing disparities
with others convicted of being a felon in possession of a firearm. Finally, although
the district court did briefly mention the mandatory minimum sentences for drug
offenses, it is clear from the record the court did not base its sentence on any improper
considerations. Rather, the court gave a lengthy explanation, excerpted above,
justifying Roberson’s sentence based on the nature of the offense and his criminal
history. In sum, we conclude the district court did not abuse its discretion in
sentencing Roberson.
III
Accordingly, we affirm.
______________________________
-6- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/5903181/ | Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about January 6, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.
The court concluded that substantial justice dictated the denial of the motion (see generally People v Gonzalez, 29 AD3d 400 [1st Dept 2006], lv denied 7 NY3d 867 [2006]). We have consistently held that, in determining whether substantial justice dictates the denial of a resentencing application, it is proper to consider the totality of the circumstances, including the nature and seriousness of the offense for which the defendant was sentenced (see e.g. People v Rodriguez, 54 AD3d 600 [1st Dept 2008]), the defendant’s conduct post-sentence (see People v Batista, 45 AD3d 396 [1st Dept 2007]), and his or her criminal and institutional record (see People v Anonymous, 98 AD3d 913 [1st Dept 2012], lv denied 20 NY3d 985 [2012]).
Defendant had amassed an extensive criminal record in both New York and New Jersey dating back to 1987. While it is true that many of his convictions involved relatively minor misdemeanor property and drug possession crimes, a number of them were the result of pleas to misdemeanors in satisfaction of felony charges. Moreover, defendant’s criminal history reveals his use of various aliases and dates of birth, as well as a number of convictions for the sale of drugs, and not mere possession. His *493history of recidivism, particularly his three parole violations for the commission of crimes while on parole, were all appropriate factors for the court to consider. Although defendant attempts to minimize the sale of cocaine to an undercover police officer in the instant case, the record reveals that he had on his person a greater amount of drugs than he sold to the officer. It is clear from these facts, as well as defendant’s prior convictions for felony drug sales, that this sale was not an isolated incident.
The court also considered the evidence of defendant’s rehabilitation while in prison (see People v Davis, 51 AD3d 573 [1st Dept 2008]). Defendant completed treatment programs for both his drug addition and his mental issues. His prison record was exemplary. Nevertheless, it was within the court’s discretion to conclude that defendant’s record while incarcerated did not outweigh the seriousness of his offense and his extensive history of recidivism and absconding (see People v Spann, 88 AD3d 597, 598 [1st Dept 2011], lv denied 18 NY3d 886 [2012]; People v McRae, 88 AD3d 552 [1st Dept 2011], lv denied 18 NY3d 884 [2012]). Nor do defendant’s age and mental condition warrant a different result. Concur—Mazzarelli, J.P., Sweeny, Renwick, Richter and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903182/ | In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist’s claim, the petitioner appeals from an order of the Supreme Court, Suffolk County (D’Amaro, J.), entered November 13, 1986, which denied the petition without hearing.
Ordered that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted for an evidentiary hearing in accordance herewith to determine if the petition was served on September 29, 1986, pursuant to the provisions of CPLR 7503 (c) and whether the respondent gave notice of her claim as soon as practicable.
The respondent’s parked automobile was damaged on October 30, 1985, when it was struck by an automobile operated by John Turner, an allegedly uninsured motorist. On September 8, 1986, the respondent served the petitioner with a demand for arbitration pursuant to the uninsured motorist clause of the automobile policy which had been issued to her by the petitioner.
The instant proceeding to stay arbitration was instituted by service of a petition claimed to have been mailed on September 29, 1986.
The Supreme Court found such service to be untimely in that CPLR 7503 (c) requires that "[a]n application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be * * * precluded”, and that excluding the day of *486service of the demand, September 8, 1986 (see, General Construction Law § 20), 20 calendar days would set the last date of the period at September 28, 1986.
General Construction Law § 25-a (1) provides that ”[w]hen any period of time, computed from a certain day, within which * * * an act is * * * required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day”.
The provisions of General Construction Law § 25-a have been applied to Statutes of Limitations (Matter of Scuderi v Board of Educ., 49 AD2d 942, appeal dismissed 38 NY2d 848) and the 20-day period provided for by CPLR 7503 (c) has been held to be the equivalent of a Statute of Limitations (Matter of Woodcrest Fabrics [Taritex, Inc.], 98 AD2d 52, 54; Matter of State Farm Mut. Auto. Ins. Co. [Santiago], 84 AD2d 552, 553).
Therefore the Supreme Court, after noting that September 28, 1986 was a Sunday, was in error in finding service on Monday, September 29, 1986, was untimely.
An evidentiary hearing is nevertheless necessary since on this motion the petitioner did not have the opportunity to controvert the respondent’s claim of untimeliness and defectiveness of service pursuant to CPLR 7503 (c). The sworn statements including such claims were dated two days after the return date of the motion, and the Supreme Court did not reach the respondent’s claim of defective service.
An evidentiary hearing is also required in light of the police accident report submitted with the petition to stay arbitration that indicates that Turner was issued a summons for operating an uninsured vehicle at the time of the accident. Such report raises questions of fact on the issue of whether the respondent gave the petitioner notice of the uninsured claim as soon as practicable as required by the insurance policy (see, Matter of Balboa Ins. Co. v Barnes, 123 AD2d 691, 692). Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903183/ | In a proceeding for the appointment of an administrator of the estate of Carlo N. DeRosa, also known as Carlo Nick DeRosa, the objectants appeal from a decree of the Surrogate’s Court, Queens County (Laurino, S.), dated January 31, 1985, which, after a nonjury trial, ordered that letters of administration issue to Judith A. DeRosa, the decedent’s surviving spouse.
*487Ordered that the appeal is dismissed as academic, without costs or disbursements.
The objectants in this proceeding raised a challenge to the decision of the Surrogate’s Court to issue letters of administration to the petitioner, the decedent’s surviving spouse. The parties herein, however, conceded during the oral argument in this proceeding that the letters of administration in dispute had been revoked by a subsequent order of the Surrogate’s Court. Accordingly, the instant appeal is academic. Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903184/ | In a proceeding pursuant to Family Court Act article 5 to establish paternity and for an order of support, the appeal is from an order of the Family Court, Westchester County (Scancarelli, J.), dated November 19, 1985, which, after a hearing, directed the appellant to pay $175 per month toward the support of his minor child to the Westchester County Department of Social Services and to pay an additional sum of $100 per month on arrears of $4,375.
Ordered that the order is affirmed, with costs.
In a prior appeal in this proceeding, this court affirmed an order of the Family Court, Westchester County (Facelle, J.), dated June 20, 1985, which determined that the appellant was the father of the subject child (Matter of Department of Social Servs. v Richard A., 121 AD2d 382). Pursuant to that order, a hearing was held to determine an appropriate order of support of the dependent child. On this appeal, the appellant contends that the petitioner adduced insufficient evidence at the hearing to sustain the order of support. We disagree.
Pursuant to Family Court Act § 415, the petitioner has the burden of proving that the person on whose behalf support payments are sought is a recipient of public assistance, that the appellant is a person charged with his or her support under the statute and that appellant has sufficient financial ability to reimburse the Department of Social Services for payments made to the recipient (Matter of Smith v Smith, 70 AD2d 938). Contrary to the appellant’s contention, we find that the petitioner has met this burden of proof and the appellant has failed to rebut the statutory presumption that he is possessed of sufficient means to pay the support ordered (Family Ct Act § 437).
Additionally, we note that the Family Court’s rejection of the appellant’s objections to the Hearing Examiner’s report *488which were filed after the time to do so had expired, did not constitute an abuse of discretion (see, 22 NYCRR former part 34). Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903186/ | Proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Incorporated Village of Old Westbury, dated January 19, 1987, which, after a hearing, denied the petitioner’s application for relief under subdivision (4) of Local Laws, 1986, No. 8 of the Incorporated Village of Old Westbury.
Adjudged that the proceeding is dismissed, with costs.
The petitioner is seeking review of a determination whereby it was denied relief from a moratorium on the acceptance of applications for subdivision approval where the subdivision would result in the creation of more than two new lots. However, during the pendency of this proceeding before this court the moratorium expired, thereby rendering the proceeding academic (see, Matter of Adirondack League Club v Board *490of Black Riv. Regulating Dist., 301 NY 219; Lighting Horizons v Kahn & Co., 120 AD2d 648).
It has been alleged that a decision from this court could have a practical effect on the existing controversy (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707; Lighting Horizons v Kahn & Co., supra), because if we were to annul the determination and direct the respondents to entertain the petitioner’s application for subdivision approval they would have to apply the law as it existed when the application was originally made. After the moratorium expired the village zoning ordinance was amended and the minimum lot area was increased from 2 to 4 acres (Local Laws, 1987, No. 13 of Village of Old Westbury). This claim is incorrect (see, Matter of Pokoik v Silsdorf, 40 NY2d 769; Matter of Shopsin v Markowitz, 130 AD2d 494; Matter of Rosano v Town Bd., 43 AD2d 728).
Since a determination on the merits in this proceeding would have no effect on the existing controversy, the proceeding is hereby dismissed. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4150906/ | Case: 16-40976 Document: 00513900738 Page: 1 Date Filed: 03/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40976
Fifth Circuit
FILED
Summary Calendar March 7, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JOSE EMILIO VANEGAS-MARTINEZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1542-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Jose Vanegas-Martinez appeals his guilty-plea conviction of, and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-40976 Document: 00513900738 Page: 2 Date Filed: 03/07/2017
No. 16-40976
sentence for, illegal reentry into the United States. He claims the district court
committed reversible plain error by applying 8 U.S.C. § 1326(b)(2), because his
California conviction of sexual battery by restraint is not an aggravated felony
under 8 U.S.C. § 1101(a)(43)(F). In defining an aggravated felony, Section
1101(a)(43)(F) incorporates the definition of a “crime of violence” under
18 U.S.C. § 16.
Vanegas-Martinez reasons that his California conviction is not an aggra-
vated felony because Section 16(b) is unconstitutionally vague on its face per
Johnson v. United States, 135 S. Ct. 2551 (2015). He concedes that his consti-
tutional challenge is foreclosed by United States v. Gonzalez-Longoria,
831 F.3d 670 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016)
(No. 16-6259), and he requests that we summarily dispose of the appeal so he
can seek further review. The government has filed an unopposed motion for
summary affirmance based on Vanegas-Martinez’s concession.
The parties are correct that Gonzalez-Longoria forecloses Vanegas-
Martinez’s facial constitutional challenge to Section 16(b). See Gonzalez-
Longoria, 831 F.3d at 672–77. Though Vanegas-Martinez also argues that his
California conviction does not meet the definition of a crime of violence under
Section 16(a), we need not reach that issue, given the result regarding
Section 16(b).
The motion for summary affirmance is GRANTED, and the judgment is
AFFIRMED. The government’s alternative motion for an extension of time to
file a brief is DENIED.
2 | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150908/ | Case: 16-10282 Document: 00513901503 Page: 1 Date Filed: 03/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10282
Fifth Circuit
FILED
March 7, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
BRADY RODRIGUEZ-CRUZ, also known as Marcos Antonio Rodriguez-
Mejia,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-51-2
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Brady Rodriguez-Cruz appeals his jury conviction for conspiracy to
commit sex trafficking of children in violation of 18 U.S.C. §§ 1591(a), (b)(1)
and 1594(c). He contends that the district court erred in instructing the jury
on the “in or affecting interstate or foreign commerce” element of § 1591(a).
Because the challenged language tracks this circuit’s pattern jury instruction
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-10282 Document: 00513901503 Page: 2 Date Filed: 03/07/2017
No. 16-10282
for violations of § 1591(a) and is a correct statement of the law, Rodriguez-Cruz
has failed to show any error on the district court’s part. 1
Further, Rodriguez-Cruz contends that the evidence was insufficient to
satisfy the “in or affecting interstate or foreign commerce” element of § 1591(a).
We have held that cell phones constitute facilities of interstate commerce and
that their use, even if wholly intrastate, is sufficient to establish the “in or
affecting interstate or foreign commerce” element for federal crimes. 2 The
evidence presented at trial showed that a co-conspirator contacted Rodriguez-
Cruz by cell phone to advertise that he had girls available for sex in exchange
for money. A series of cell phone calls and text messages followed to coordinate
the exchange. Rodriguez-Cruz does not dispute these facts. Thus, the evidence,
when viewed in the light most favorable to the verdict, was sufficient to allow
a rational jury to conclude beyond a reasonable doubt that Rodriguez-Cruz and
his co-conspirator used facilities of interstate commerce as part of their
conspiracy to commit sex trafficking of children. 3 Accordingly, the district
court’s judgment is AFFIRMED.
1 See United States v. Phea, 755 F.3d 255, 266 (5th Cir. 2014); United States v.
Richardson, 676 F.3d 491, 507-08 (5th Cir. 2012); Fifth Circuit Pattern Jury Instructions
(Criminal) § 2.68.
2 See Phea, 755 F.3d at 266; United States v. Marek, 238 F.3d 310, 318-19 & n.35 (5th
Cir. 2001) (en banc).
3 See Phea, 755 F.3d at 263; United States v. Pruneda-Gonzalez, 953 F.2d 190, 193
(5th Cir. 1992).
2 | 01-03-2023 | 03-08-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5907439/ | Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.), entered January 27, 2012. The order granted defendants’ motion for summary judgment dismissing plaintiffs’ complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court. Present—Scudder, P.J., Fahey, Lindley, Valentino and Martoche, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823540/ | Thermal insulator. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903187/ | Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about January 6, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.
The court concluded that substantial justice dictated the denial of the motion (see generally People v Gonzalez, 29 AD3d 400 [1st Dept 2006], lv denied 7 NY3d 867 [2006]). We have consistently held that, in determining whether substantial justice dictates the denial of a resentencing application, it is proper to consider the totality of the circumstances, including the nature and seriousness of the offense for which the defendant was sentenced (see e.g. People v Rodriguez, 54 AD3d 600 [1st Dept 2008]), the defendant’s conduct post-sentence (see People v Batista, 45 AD3d 396 [1st Dept 2007]), and his or her criminal and institutional record (see People v Anonymous, 98 AD3d 913 [1st Dept 2012], lv denied 20 NY3d 985 [2012]).
Defendant had amassed an extensive criminal record in both New York and New Jersey dating back to 1987. While it is true that many of his convictions involved relatively minor misdemeanor property and drug possession crimes, a number of them were the result of pleas to misdemeanors in satisfaction of felony charges. Moreover, defendant’s criminal history reveals his use of various aliases and dates of birth, as well as a number of convictions for the sale of drugs, and not mere possession. His *493history of recidivism, particularly his three parole violations for the commission of crimes while on parole, were all appropriate factors for the court to consider. Although defendant attempts to minimize the sale of cocaine to an undercover police officer in the instant case, the record reveals that he had on his person a greater amount of drugs than he sold to the officer. It is clear from these facts, as well as defendant’s prior convictions for felony drug sales, that this sale was not an isolated incident.
The court also considered the evidence of defendant’s rehabilitation while in prison (see People v Davis, 51 AD3d 573 [1st Dept 2008]). Defendant completed treatment programs for both his drug addition and his mental issues. His prison record was exemplary. Nevertheless, it was within the court’s discretion to conclude that defendant’s record while incarcerated did not outweigh the seriousness of his offense and his extensive history of recidivism and absconding (see People v Spann, 88 AD3d 597, 598 [1st Dept 2011], lv denied 18 NY3d 886 [2012]; People v McRae, 88 AD3d 552 [1st Dept 2011], lv denied 18 NY3d 884 [2012]). Nor do defendant’s age and mental condition warrant a different result. Concur—Mazzarelli, J.P., Sweeny, Renwick, Richter and Roman, JJ. | 01-03-2023 | 01-13-2022 |
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