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https://www.courtlistener.com/api/rest/v3/opinions/5903512/ | An appeal hav*523ing been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Gregory Carro, J.), rendered on or about August 12, 2010, 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— Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903513/ | Harvey, J.
Appeal from an order of the Supreme Court (Williams, J.), entered June 4, 1987 in Sullivan County, which partially granted a motion by defendant Interstate Security Service North for summary judgment dismissing the complaint against it.
Defendant Robert Turner was employed as a security guard by defendant Interstate Security Service North (hereinafter Interstate). On December 31, 1983 he was assigned to work at the Mid-Valley Mall in the Town of Newburgh, Orange County. At approximately 8:30 p.m., Turner forced a 15-year-old girl who was in the mall to accompany him to the mall’s *788security office where he assaulted, raped and sodomized her. Turner was subsequently convicted upon his plea of guilty to the crime of rape in the first degree and sentenced to a term of imprisonment.
The victim’s father (hereinafter plaintiff) commenced this action alleging, inter alia, that Interstate was vicariously liable for Turner’s acts. Interstate moved for summary judgment. Supreme Court granted partial summary judgment dismissing the first and second causes of action which were premised upon the theory of respondeat superior. This appeal by plaintiff followed.
We affirm. While an employer can be held vicariously liable for the torts of his employee committed in the course of the employer’s work, even if the acts are done irregularly or with disregard of instruction (see, Riviello v Waldron, 47 NY2d 297, 302-305), there is no respondeat superior liability for torts committed by the employee for personal motives unrelated to the furtherance of the employer’s business (see, Murray v Watervliet City School Dist., 130 AD2d 830, 831). Here, Turner’s outrageous conduct was in no way incidental to the furtherance of Interstate’s interest. The acts were committed for personal motives and were a complete departure from the normal duties of a security guard. Accordingly, we conclude that Supreme Court correctly dismissed the causes of action which were based upon the theory of respondeat superior.
The other arguments advanced by plaintiff on appeal have been considered and found meritless.
Order affirmed, with costs. Kane, J. P., Yesawich, Jr., Levine and Harvey,JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903516/ | Weiss, J.
Appeal from an order of the Supreme Court (Prior, Jr., J.), entered June 26, 1987 in Albany County, which, inter alia, denied plaintiffs’ motion for leave to serve an amended complaint and granted defendants’ cross motions for summary judgment dismissing the complaint.
On March 7, 1982, plaintiffs executed a contract to purchase a one-family dwelling owned by defendant Elizabeth I. Leonard for $47,500. The realtors who listed and sold the property were defendants Virginia H. Becker and Bruce H. Becker, doing business as Town Crier Becker Realty. Leonard and her deceased husband had purchased the property, when new, from the builder in 1959. In 1976, Leonard’s late husband had masonry repairs performed to install a new footing and corner of the foundation at the front end of the house. In 1981, Leonard observed cracks in the foundation wall on the rear of the house, believed to be caused by settling of the house in a sandy area. She had the footing and part of the foundation wall replaced. The cost of the 1976 work was approximately $5,000 and the 1981 work $8,300. After the work was finished, she painted the repaired wall areas.
In July 1983, more than one year after closing, plaintiffs allege that they learned from neighbors that extensive work had been performed on the foundation and that in October 1983 cracks appeared throughout the foundation. On March 13, 1984 this action was commenced asserting four causes of action labeled as fraudulent conveyance, misrepresentation of material facts, concealment of facts and breach of implied warranty of habitability; Defendants each interposed affirmative defenses and cross-claimed against each other. In March 1987, three years later, plaintiffs moved for leave to amend the complaint to allege causes of action for mutual mistake and innocent misrepresentation. Plaintiffs made a separate motion for summary judgment. Each defendant cross-moved for summary judgment dismissing the complaint against them. Supreme Court denied both of plaintiffs’ motions and granted defendants’ cross motions for summary judgment, giving rise to this appeal.
*794CPLR 3025 (b) provides that a pleading may be amended at any time with leave of a court, which leave shall be freely given upon such terms as may be just. The decision to allow or disallow an amendment is committed to the court’s discretion (Mayers v D’Agostino, 58 NY2d 696; Murray v City of New York, 43 NY2d 400, 404-405). The exercise of such discretion "will not lightly be set aside” (Beuschel v Malm, 114 AD2d 569). " 'Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine’ ” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959, quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:5, at 477; cf., Polak v Schwenk, 115 AD2d 142, 143). Such prejudice or surprise must result directly from the delay (Fahey v County of Ontario, 44 NY2d 934, 935). Finally, "the merits of a proposed amendment will not be examined on the motion to amend—unless the insufficiency or lack of merit is clear and free from doubt” (Norman v Ferrara, 107 AD2d 739, 740).
These principles before us, we find that plaintiffs’ proposed causes of action for innocent misrepresentation and mutual mistake would not result in surprise or prejudice flowing directly from the delay in their assertion. The first three causes of action in the complaint are all based upon allegations of fraud, concealment and misrepresentation. If the element of scienter is subtracted from a cause of action for fraud, the remainder constitutes innocent misrepresentation (see, West Side Fed. Sav. & Loan Assn. v Hirschfeld, 101 AD2d 380, 384, lv denied 65 NY2d 605). We have previously held that innocent misrepresentations may be sufficient to void a contract, (see, Mix v Neff, 99 AD2d 180, 183). Much the same result obtains with respect to the proposed cause of action grounded upon mutual mistake. "[T]o constitute fraud or mutual mistake, the facts misrepresented or the facts about which the parties are mutually mistaken must be material facts” (Seyfried v Greenspan, 92 AD2d 563, 566). The general rule is that "where a mistake in contracting is both mutual and substantial, there is an absence of the requisite 'meeting of the minds’ to the contract” (Brauer v Central Trust Co., 77 AD2d 239, 243, lv denied 52 NY2d 703). Here, the minds of the parties never met as to the past or present condition of the foundation. Plaintiffs did not want to purchase a house with a foundation problem and Leonard did not wish to sell her house until any foundation problem had been repaired. *795The realtors concededly would have disclosed their knowledge of any problem if asked. If credited by the trier of the facts, plaintiffs’ version would support this cause of action. Moreover, since no new allegations of fact have been pleaded, we find no basis to hold that defendants have been prejudiced by the delay in seeking the amendment. Accordingly, we find that Supreme Court erred in denying plaintiffs’ motion for leave to amend their complaint.
It follows that Supreme Court also erred in granting defendants’ cross motions for summary judgment. Whether representations were made to plaintiffs, whether such representations induced plaintiffs to purchase the house, what the actual condition of the house foundation was, whether defendants were aware of that condition and whether plaintiffs could have discovered such condition in the exercise of reasonable diligence, all constitute issues of fact which require resolution by trial, not motion (see, Tahini Invs. v Bobrowsky, 99 AD2d 489, 490; cf., Ward v Hanley, 130 AD2d 742). Nor do the "as is” and "merger” clauses in the contract shield defendants from judicial inquiry into specific allegations of fraud in the inducement of the contract (see, Chopp v Welbourne & Purdy Agency, 135 AD2d 958; Ward v Hanley, supra, at 743; Caramante v Barton, 114 AD2d 680, 682).
Order modified, on the law, without costs, by reversing so much thereof as denied plaintiffs’ motion for leave to amend the complaint and granted defendants’ cross motions for summary judgment; grant plaintiffs’ motion for leave to serve an amended complaint and deny defendants’ cross motions for summary judgment; and, as so modified, affirmed. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903540/ | *525Orders, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about February 3, 2012, which, insofar as appealed from, upon a finding of mental illness, terminated respondent mother’s parental rights to the subject children, and committed custody and guardianship of the children to petitioner agency and the Commissioner of the Administration for Children’s Services for the purpose of adoption, unanimously affirmed, without costs.
Clear and convincing evidence, including the expert testimony from a court-appointed psychologist, who examined the mother on two occasions and reviewed all of her available medical records, supported the determination that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for her children (see Social Services Law § 384-b [4] [c]; [6] [a]; Matter of Faith D.A. [Natasha A.], 99 AD3d 641 [1st Dept 2012]). The psychologist testified that the mother suffered from schizophrenia and her prognosis was “very poor.” She had periods of noncompliance with her medications and exhibited symptoms regularly, whether or not she was compliant with treatment. Concur— Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903541/ | Harvey, J.
Appeal from a judgment of the Supreme Court (Williams, J.), entered February 10, 1987 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of the State Tax Commission denying petitioners’ request for refunds of additional New York City income tax assessments.
The facts are not in dispute. In the early 1950s, petitioners purchased stock in a car dealership. The dealership later became a major distributor of foreign cars. In 1970, the dealership was sold to a publicly held corporation. Petitioners received preferred shares in the publicly held corporation which were restricted to annual redemptions of $400,000 after six years. Petitioners disposed of their redeemable shares and reported receipt of annual installments of $400,000 in their State and New York City personal income tax returns for the years 1977, 1978 and 1979.
For purposes of the city tax, petitioners used the fair market value of the stock on July 1, 1966 as the basis for the stock, and reported as income the enhancement in the value of the stock occurring after that date. July 1, 1966 was the effective date of the city personal income tax laws. While the city’s tax laws originally allowed such a step-up in the basis of *827property, this provision was omitted when superseding laws were passed in 1976. Consequently, the Audit Division of the State Department of Taxation and Finance determined that the proper basis for the income reported by petitioners in 1977, 1978 and 1979 was the original purchase cost of the stock in the early 1950s. The Audit Division thus assessed additional city personal income taxes of $29,402.28 plus interest. After the tax was sustained upon administrative review by the State Tax Commission, petitioners commenced the instant proceeding. Supreme Court dismissed the petition and this appeal ensued.
Petitioners contend that the city tax laws in effect in 1970 should apply to their capital gains since that was when they entered into the relevant installment sales transaction. We cannot agree. Tax consequences are established at the time payments are received, not at the time the agreement of sale is made (see, Matter of Rosenblatt v New York State Tax Commn., 85 AD2d 770, 771). Here, petitioners received installment payments in 1977, 1978 and 1979 from their agreements. During those years, the former city tax laws had been superseded by statutes which required gains accruing prior to the enactment of the 1966 city tax laws to be included in income. Hence, the Tax Commission correctly determined that the pre1966 value of petitioners’ property was the proper basis for determining their capital gains.
Petitioners further contend that the use of a basis which predated the enactment of the taxing statutes resulted in a deprivation of due process. This court, however, has recently held that "[a] tax on capital gains income may validly be imposed when realized, even if part of the profit represents the enhanced value of the property before the adoption of the tax” (Matter of Bombart v Tax Commn., 132 AD2d 745, 748; see, MacLaughlin v Alliance Ins. Co., 286 US 244, 250). This precedent appears to control the instant case and thus petitioners’ constitutional argument is rejected.
Petitioners’ remaining contentions have been considered and found unpersuasive.
Judgment affirmed, without costs. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903518/ | Mahoney, P. J.
Appeal from a judgment of the Supreme Court (Duskas, J.), entered December 19, 1986 in St. Lawrence County, which, inter alia, granted plaintiff’s motion for summary judgment.
Defendant’s husband borrowed approximately $17,000 from plaintiff for the purchase of an automobile in August 1984. A note evidencing the transaction provided that plaintiff had a security interest in the automobile as well as in the funds he had in all of his accounts with plaintiff. Defendant signed the note as "Co-Borrower”. Previously, in November 1983, defen*799dant’s husband had borrowed approximately $95,000 from plaintiff. The note evidencing that transaction stated that plaintiff had a security interest in certain property as well as funds in a specific account he had with plaintiff identified as number 3904-0-00.
Defendant’s husband subsequently became insolvent and defaulted on both notes. At that time, defendant’s husband had an interest in 10 separate accounts with plaintiff, only 2 of which bore account numbers resembling the account number referred to in the November 1983 note. Despite this, plaintiff set off the funds in all of the accounts against the balance due on the November 1983 note. Plaintiff also seized and sold the automobile which had secured the August 1984 note. After the sale, a deficiency of approximately $3,300 remained on the 1984 note. Plaintiff commenced this action seeking recovery of that sum. Supreme Court granted plaintiff’s motion for summary judgment on its complaint. Defendant appeals.
Defendant contends that plaintiff improperly applied a number of her husband’s accounts to the November 1983 note. She states that, had the accounts properly been applied to the August 1984 note, that deficiency would have been eliminated. Defendant’s contention may well have merit had she signed the note as a surety (see, 57 NY Jur, Suretyship and Guaranty, § 308, at 731-733 [1967]). However, she signed the note as a coborrower and was therefore primarily liable. A creditor is not required to proceed first against the security before seeking to enforce the terms of the note (see, UCC 9-501 [1]; see also, First Intl. Bank v Blankstein & Son, 88 AD2d 501, 502; State Bank v Duesler, 41 AD2d 1009). Thus, while it may be true that plaintiff unlawfully applied funds from certain accounts toward satisfaction of the November 1983 note, this does not affect the fact that plaintiff was entitled to proceed against defendant before resorting to the security.
Judgment affirmed, without costs. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903519/ | Mercure, J. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903520/ | Appeal from a decree of the Surrogate’s Court of Otsego County (Kepner, Jr., S.), entered July 3, 1987, which, inter alia, determined that petitioner was entitled to a one-half remainder interest in a trust created in decedent’s last will and testament.
*800Abraham L. Kellogg (hereinafter decedent) died in 1946 leaving a last will and testament and codicil which were duly admitted to probate. The codicil ratified and confirmed paragraphs 23 and 24 of the will, which provide as follows:
" "twenty-third: The cash which is turned over to said Trustee by my said Executor shall be carefully invested for the purpose of realizing income, and all income which shall be received by my said Trustee of every name, nature and description shall be paid to my son Lincoln L. Kellogg during the term of his natural life, and to Katherine Brooks Kellogg during the term of her natural life, except that if the death of Lincoln L. Kellogg precedes that of Katherine Brooks Kellogg, my said Trustee is hereby authorized and directed to pay to Hartwick College the sum of Fifteen thousand ($15,000.00) dollars, the same to be carefully invested, the income of which is to be used for sustaining scholarships to worthy students attending said College, and to the Abraham L. Kellogg Central School at Treadwell, New York, the sum of Fifteen thousand ($15,000.00) dollars, which shall be carefully invested, and the income of which shall be used for the upkeep of the athletic field, for income to reduce taxation, and to maintain the Abraham L. Kellogg Central School Prizes.
"The Board of Trustees of said School are hereby authorized, should they deem it advisable, to use it to increase the sums given for school prizes as they are at that time in existence.
"twenty-fourth: When both Lincoln L. Kellogg and Katherine Brooks Kellogg shall be dead, I hereby direct that my Trustee aforesaid, the Citizens National Bank & Trust Company of Oneonta, New York, shall first pay to the First Presbyterian Church of Oneonta, New York, the sum of One thousand ($1,000.00) dollars, which shall be a memorial gift in honor and memory of May B. Kellogg and divide the balance equally between Hartwick College and the Abraham L. Kellogg Central School at Treadwell, New York.”
Lincoln K. Kellogg died in 1969 and a proceeding was thereafter commenced by Central School District No. 1 of the Towns of Delhi, Kortright, Meredith, Franklin, Hamden and Bovina (hereinafter District No. 1)1 seeking: (1) a determina*801tion that District No. 1 is entitled to $15,000 under paragraph 23 of the will, and (2) a decree that District No. 1 is presumptively entitled to one half of the remainder under paragraph 24 upon the death of Katherine Brooks Kellogg.
Surrogate’s Court determined that District No. 1 was the successor in interest to the Abraham L. Kellogg School (hereinafter Kellogg School) for purposes of the $15,000 bequest but expressly refused to entertain the question as to whether District No. 1 was presumptively entitled to payment of one half the remainder under paragraph 24 of the will, holding that such a determination would be premature. An appeal ensued and this court affirmed (Matter of Kellogg, 33 AD2d 388).
Katherine Brooks Kellogg died in 1986, prompting Delhi Central School District (hereinafter Delhi Central) to petition Surrogate’s Court, asserting a claim to the one-half remainder interest of the trust created under paragraph 24. Surrogate’s Court determined that the doctrine of collateral estoppel precluded the estate of Katherine Brooks Kellogg (hereinafter the estate) from challenging the 1969 decision of Surrogate’s Court which held that District No. 1 was the successor in interest to the Kellogg School. We reach a different conclusion.
The doctrine of collateral estoppel, intended to reduce litigation and conserve the resources of the court and of litigants, is based upon the concept that it is not fair to permit a party to relitigate an issue already decided against it. It is well established that for the doctrine to be invoked, two requirements must be satisfied. "First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (Kaufman v Lilly & Co., 65 NY2d 449, 455 [citations omitted]). The party seeking the advantage of the doctrine, here Delhi Central, bears the burden of demonstrating the identify of the issues in the present litigation and the prior determination, whereas the party endeavoring to defeat its application bears the burden of substantiating the absence of a full and fair opportunity to litigate the issue in the prior action (see, supra, at 456; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 73).
Delhi Central averred and Surrogate’s Court determined *802that the isolated issue in both proceedings is whether Delhi Central (formerly District No. 1) is successor in interest to the Kellogg School. We disagree. The court’s determination in the 1969 proceeding was not that District No. 1 was the successor to the Kellogg School for the purposes of any and all bequests. Rather, it applied the doctrine of cy pres (see, EPTL 8-1.1) to the specific language of paragraph 23 and determined that the changes brought about by the 1967 consolidation were not such as would defeat the identified purposes of the testator therein, i.e., the upkeep of the athletic field, the reduction of taxes and the maintenance of the Kellogg School Prizes. Because of possible changes in Delhi Central and its relationship with the Kellogg School, the doctrine of cy pres should again be utilized to determine whether decedent’s intent can still be effectuated, particularly in view of the lack of specificity in paragraph 24, which makes an unrestricted gift. The doctrine of collateral estoppel cannot be invoked to prevent a party from litigating an issue which has never been adjudicated (see, Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11).
We also disagree with the determination of Surrogate’s Court that the estate had a full and fair opportunity to litigate the issues at the 1969 proceeding. Katherine Brooks Kellogg was specifically precluded from introducing evidence regarding paragraph 24 of decedent’s will, and any consideration of paragraph 24 was deemed premature. In considering whether a party has had a full and fair opportunity to litigate, a court may consider such factors as the vigor of the defense in the first proceeding and any variance in the size of the claim in each proceeding 2 (B. R. De Witt, Inc. v Hall, 19 NY2d 141, 148; Siegel, NY Prac § 467). Katherine Brooks Kellogg had neither the opportunity nor the incentive in 1969 to litigate whether District No. 1 could be deemed a presumptive remainderman of the Kellogg trust. Application of the doctrine of collateral estoppel under the circumstances of this case would violate basic notions of fairness (see, Schwartz v Public Adm’r of County of Bronx, supra; Read v Sacco, 49 AD2d 471, 473-474).
Decree reversed, on the law, with costs, and matter remitted to the Surrogate’s Court of Otsego County for further proceed*803ings not inconsistent with this court’s decision. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur.
. At the time of decedent’s death, the Abraham L. Kellogg School was operated by Central School District No. 6 of the Towns of Franklin and Meredith. In 1967, the district in which the Abraham L. Kellogg School was situated was incorporated with surrounding districts to form District No. 1. In 1973, the name of District No. 1 was changed pursuant to Education Law *801§ 315 to Delhi Central School District. The Abraham L. Kellogg School still exists but is now operated as an elementary school.
. The 1969 proceeding concerned a $15,000 bequest whereas the remainder interest had a fair market value as of July 3, 1987 of more than $13 million. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2011438/ | 653 A.2d 398 (1995)
In re S.C.M., Appellant.
No. 94-FS-960.
District of Columbia Court of Appeals.
Argued December 19, 1994.
Decided February 2, 1995.
*399 Karen D. Alvarez, for S.C.M.
Alphonso J. Gonzalez, for D.M.
William G. Dansie, for M.J. and C.J.
*400 David R. Lisansky, for A.H.
Sonia A. Bacchus, Asst. Corp. Counsel, with whom Erias A. Hyman, Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, for the District of Columbia.
Before FERREN, STEADMAN, and SCHWELB, Associate Judges.
SCHWELB, Associate Judge:
In this expedited child neglect appeal, S.C.M., now three and a half years old, has asked this court to set aside an order of the Superior Court conditionally releasing her to the physical custody of her biological mother, D.M., while leaving her in the legal custody of her erstwhile caretakers, M.J. and his wife C.J. (the J.'s). The J.'s support S.C.M.'s appeal. Most of the contentions urged upon us on appeal were not presented to the trial court or are otherwise not properly before us at this time, and we find no error or plain error. Accordingly, we affirm.
I.
EVENTS PREDATING THE JULY 26, 1994 ORDER
S.C.M., the little girl who is the subject of this controversy, was born on May 7, 1991. On September 30, 1992, when she was sixteen months old, she was admitted to D.C. General Hospital for treatment of a gunshot wound in her upper thigh. S.C.M. was wearing a cast, and the physicians determined that she had previously suffered a broken leg.
A police investigation which followed revealed that S.C.M. was living in a crowded apartment with her mother, then eighteen years of age, her maternal grandmother, her fourteen-year-old pregnant aunt, and several other small children. The grandmother regularly used cocaine and PCP and associated with a criminally-oriented boyfriend, one of several adults who had brought handguns into the apartment. The unit "reeked" with an offensive odor and was infested with roaches and rodents. S.C.M.'s young aunt reported that S.C.M. sometimes arose while other members of the household were still asleep and wandered around the apartment. The aunt claimed that when S.C.M. played with objects and sometimes broke them, the mother's response was to discipline her with a belt; the mother denied these allegations. The mother and the grandmother provided the police with hesitant, inconsistent and unconvincing explanations of the child's wounds; the mother subsequently admitted that both women had lied for fear of retribution from the grandmother's criminal associates.
On October 1, 1992, the Corporation Counsel filed a petition requesting the court to adjudicate S.C.M. a neglected child. A hearing was held on the same day before Judge Gregory E. Mize. M.J. was identified at the time as S.C.M.'s father. The judge ordered that S.C.M. be released to M.J. and his wife, C.J., with "the [m]other to have reasonable rights of visitation as arranged by the caretaker."
On October 20, 1992, the mother, alleging through counsel that she had "serious doubts" as to whether M.J. is in fact S.C.M.'s father, filed a motion to establish paternity. H.L.A. tests subsequently established that one A.H. is S.C.M.'s biological father and that M.J. is not.
On January 21, 1993, the scheduled trial date, the parties signed,[1] and Judge Mildred M. Edwards (the trial judge) approved, a stipulation in which the mother
acknowledge[d] that she was aware of problems in [the grandmother's] house, where she and [S.C.M.] lived, and that knowing of these problems, she failed to exercise sufficient and appropriate supervision with respect to [S.C.M.], and as a result the respondent sustained a gunshot wound.
The stipulation provided that the government "will not oppose return of [S.M.] to the mother if the home is approved by court social services and court social services recommends return of the respondent to the home."
*401 It appears that M.J. and his wife provided S.C.M. with excellent care, and the trial judge subsequently expressed her gratitude to the couple. There was, however, a great deal of tension between the mother and the J.'s. During the summer of 1993, the mother alleged that S.C.M. had told her that M.J. had bitten her (S.C.M.) on the vagina. The mother subsequently attempted to retreat from or retract this allegation, and it appears to have been established to the satisfaction of the court's Social Services Division and of a physician who examined S.C.M. that the charge against M.J. was baseless.[2] Nevertheless, the probation officer reported on August 20, 1993, that "[s]ince the biological mother made these allegations the foster father has been prohibited from living in the same house as [S.C.M.] and only permitted supervised visitation."
On September 16, 1993, the trial judge entered a disposition order. She placed S.C.M. in the legal custody of M.J. and C.J. The order stated that the mother was to have visitation "supervised by court social services," but also provided that "unsupervised visits shall be in the discretion of [the probation officer] if the psychological evaluation of respondent and mother indicate [that] unsupervised visits are not to the detriment of the respondent." Subsequent orders dated October 6, 1993, and December 7, 1993, likewise provided that unsupervised visitation was to be in the probation officer's discretion.
In a report dated March 15, 1994, the probation officer reported to the court that S.C.M. had been doing well with M.J. and C.J., and that the mother had been visiting her without incident. The officer stated that she was "pleased with the [mother's] progress (albeit slow, better than none at all)," that "the goal in this case is to reunify S.C.M. with her mother," and that "[s]hould all go well during this period, reunification can be recommended at the next court date." The probation officer added that the mother's living arrangement "needs clarification."
In July, 1994, the probation officer recommended that the mother, who claimed at that time to be living with a female roommate, be allowed to take her daughter home for an overnight visit. Acting upon the advice of S.C.M.'s guardian ad litem (GAL), who told them that overnight visits were not authorized, M.J. and C.J. refused to allow the mother to take S.C.M. The probation officer requested an emergency hearing before the court for July 15, 1994, and counsel were notified by telephone. The GAL was unable to attend this hearing, but counsel for the J.'s was present. At the hearing, the judge observed that M.J. and C.J. "have done beautifully with [S.C.M.]." She stated, however, that overnight visits were the probation officer's "shot to call." She directed counsel for the J.'s to make this clear to his clients.
A regularly scheduled review hearing was held on July 26, 1994. The judge reproved the GAL for obstructing the visitation order. Relying on a report by the probation officer to the effect that the mother had made great progress and that "few mothers have cooperated so fully with this writer,"[3] the judge stated that
we are talking about a mother-child relationship where the mother has demonstrated a sincere desire to have her child back, be the kind of mother she wants [S.C.M.] to have, and to act in her child's best interest.
The judge issued an order directing that the "child shall reside with mother effective immediately," but that S.C.M.'s private placement in the legal custody of the J.'s be continued, with a review set for October 27, 1994. It is from this order that the GAL filed a notice of appeal on S.C.M.'s behalf.
II.
EVENTS SINCE THE JULY 26, 1994 ORDER
On July 30, 1994, in conformity with the trial judge's order, S.C.M. was returned to the physical custody of her mother. In the *402 days that followed, the GAL initiated a flurry of activity both in the Superior Court and in this court. On or about August 1, 1994, she moved the trial court to stay execution of the July 26 order. She also filed a motion seeking recusal of the trial judge, allegedly for improper ex parte communications.[4] On or about the same date, the GAL filed a notice of appeal, and moved this court for a stay of the order, for summary reversal, for a writ of mandamus, and for an expedited hearing. The trial judge, apparently believing herself to be without authority to act on the GAL's motions because an appeal was pending, did not decide the motion to recuse, nor did she stay her order. A motions division of this court granted the GAL's request for an expedited hearing, but denied all other relief.
It appears from various filings of the parties and from the representations of counsel that a review of S.C.M.'s placement was held on October 27, 1994. According to a representation in the District's brief in this court on the merits, filed on November 2, 1994, "the [trial] court continued the present status [at the October 27 hearing] even though reunification has been less than satisfactory to date."[5] The District's brief further stated:
The [trial] court noted that it has limited jurisdiction because of the pending appeal, and asked the Corporation Counsel to move this [c]ourt to grant a limited remand to enable the Family Division more flexibility to act at the next hearing which is scheduled for December 6, 1994.
The District represented that it would "shortly" file such a motion, but in fact failed to do so until December 13, 1994, a week after the review. Because oral argument in this court had been scheduled for December 19, 1994, we carried the motion with the case, and we now dispose of it in this opinion.
III.
THE MOTION TO REMAND
In general, the filing of a timely notice of appeal immediately transfers jurisdiction of all matters relating to the appeal from the trial court to the appellate court. 9 J. MOORE, MOORE'S FEDERAL PRACTICE, § 203.11, at 3-45 & n. 1 (1994); see Abrams v. Abrams, 245 A.2d 843, 844 (D.C.1968). As we explained in Carter v. Cathedral Ave. Co-op, Inc., 532 A.2d 681 (D.C.1987), however,
[w]hile the line that marks the division between what the trial court may and may not do is usually cast in terms of "lack of jurisdiction," the doctrine is judge-made, designed to avoid the confusion and waste of time that might flow from having two courts deal with a single case at the same time. Hence, it is subject to a commonsense flexibility in application.
Id. at 684 n. 7 (citations omitted); see also Aurell v. Furst, 539 A.2d 1081 (D.C.1988) (per curiam).
The application of the general rule is limited to situations in which the order appealed *403 from disposes of the case in its entirety. "[I]f an appeal is taken from a judgment which does not finally determine the entire action, the appeal does not prevent the [trial] court from proceeding with matters not involved in the appeal." 9 MOORE, supra, § 203.11, at 3-53. Accordingly, an appeal from an order granting or denying a preliminary injunction does not divest the trial court of jurisdiction to proceed with the action on the merits. Id., § 203.11 at 3-53 to 3-54 & n. 44. "There is no reason to treat a collateral order appeal as transferring the entire litigation to the court of appeals." Aurell, supra, 539 A.2d at 1081 (quoting 15 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE, § 3911 at 497 (1976)).[6]
In the present case, the trial judge's order placing S.C.M. with her mother did not, in Professor Moore's words, "finally determine the entire action." Rather, it constituted an interim, experimental measure; the judge commented at the July 26, 1994 hearing that this isn't engraved in stone. We are taking a very significant step in reunifying today but not taking the step of the permanent or more lasting order of an order of protective supervision.
We agree with the District's contention that the order appealed from is in the nature of a preliminary injunction, in that the court effectively ordered that S.C.M. be placed with the mother and that the J.'s surrender physical custody of her. Cf. Super. Ct.Civ.R. 62(c) (court may suspend, modify, restore or grant an injunction during pendency of appeal).[7] We therefore conclude that the judge was not precluded, during the pendency of this appeal, from proceeding with any of the other issues in the case, including the motion for recusal, the conduct of conventional reviews, and modification, in light of new circumstances, of orders previously caused by the court. Specifically, the judge's power to revoke S.C.M.'s conditional placement with the mother was not impaired by the filing of the GAL's appeal.
The principles underlying Rule 62(c) apply with particular force in the present situation. S.C.M. is, in effect, a ward of the court, and the judge has the obligation to act in her best interest as parens patriae. See, e.g., In re L.W., 613 A.2d 350, 354 (D.C.1992). In order to carry out that responsibility, the judge must have the broad authority to continue so to act as events unfold and circumstances change, notwithstanding the pendency of an appeal from an interim order. The "common-sense flexibility" to which we referred in Carter, supra, 532 A.2d at 684 n. 7, must be invoked here in order to assure that the trial judge can act promptly and effectively, irrespective of the appeal, to prevent harm to S.C.M., and that she may continue to proceed with the case and do what is best for the child. Accordingly, the District's motion for a remand is denied.[8]
IV.
THE GAL'S SUBSTANTIVE CONTENTIONS
A. Plain Error.
The GAL, with the support of counsel for M.J. and C.J., has presented to this court a substantial number of issues, most of which were never raised in the trial court.
In Miller v. Avirom, 127 U.S.App. D.C. 367, 384 F.2d 319 (1967), the court stated:
*404 In our jurisprudential system, trial and appellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort. Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal. Canons of this tenor reflect, not obeisance to ritual, but considerations of fairness to the court and the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.
Id. at 369-70, 384 F.2d at 321-22 (1967) (citations and internal quotation marks omitted); see also District of Columbia v. Banks, 646 A.2d 972, 978 & n. 6 (D.C.1994). Where a point has not been preserved, we will disturb the trial court's disposition only where the error was "plain" (in the sense of "clear" or "obvious") and where reversal is required to avoid a clear miscarriage of justice. Banks, supra, 646 A.2d at 978. In the present case, synchronization between the GAL's contentions in the trial court and in this court has been lacking.
B. Paternity By Estoppel.
The first four argument headings in the GAL's brief read as follows:
1. [S.C.M.]'s Relationship to M.J. is filial;
2. D.M. is estopped to deny that M.J. is [S.C.M.]'s father;
3. M.J. legally is [S.C.M.]'s father; and
4. The order of July 26 effectively terminated [S.C.M.]'s relationship with her parent....
So far as we can discern from the record, none of these contentions has been properly preserved, and the trial judge has never been asked to rule on them.
Neither M.J. nor the GAL appealed from the adjudication, based on the H.L.A. test results, that M.J. is not S.C.M.'s biological father. "Whenever the results of the tests and report exclude the alleged parent as the parent of the child, that evidence shall be conclusive evidence of nonpaternity, unless contrary results are received." D.C.Code § 16-2343.1(c)(3) (1989). Any argument to the contrary is plainly out of time. Id. § 16-2343.1(b)(1).
The GAL and the J.'s contend that the mother told M.J., while she was still pregnant, that he was her child's father. They claim that as a result of these representations, he developed a father-daughter relationship with S.C.M., and that the mother is now estopped from denying his paternity.[9] The GAL cites a number of cases from other jurisdictions, most of which hold that estoppel should operate to preclude a mother "from thereafter bastardizing the child for the sole purpose of furthering her own self-interest...." See, e.g., In re Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762, 764-65 (App. Div. 3d Dep't.1983). No such consideration is present here. Moreover, A.H., who has not been accused of misrepresenting anything to anyone, has been adjudicated S.C.M.'s father. It would not be in the child's interest to have two different men sharing that legal status. Finally, S.C.M. filed a motion to establish paternity in October, 1992, expressing doubt that M.J. was her child's father. Any possible misrepresentation ended more than a year and half before S.C.M. was removed from M.J.'s home.
This court has not taken an expansive view of the doctrine of paternity by estoppel, see, e.g., K.A.T. v. C.A.B., 645 A.2d 570, 572-74 (D.C.1994); Dews v. Dews, 632 A.2d 1160, 1166-69 (D.C.1993), even where that doctrine has been invoked for the plainly beneficent purpose of attempting to secure support for the child. There being nothing in the record to suggest that the equitable estoppel doctrine was presented below, we conclude that it was not plainly wrong for the *405 trial judge to fail to invoke that doctrine on her own initiative when no party ever asked her to do so, and we discern no miscarriage of justice.[10]
C. Alleged Procedural Irregularities.
The GAL contends that she had no notice that the child might be removed from M.J.'s home at the July 25 hearing. She further claims that an evidentiary hearing should have been held. We disagree with both contentions.
The claim of lack of notice is specious. The goal of reunifying mother and daughter appears unambiguously from the stipulation approved by the court on January 21, 1993. The probation officer's report of March 15, 1994, specifically stated that if all went well, reunification could be recommended "at the next court date." (Emphasis added).[11]
Turning to the GAL's complaint that there was no evidentiary hearing, we have found nothing in the record to suggest that the GAL ever asked for one, or that she ever sought to present a witness whose testimony the judge declined to entertain. Having been placed on notice several months in advance that the issue of reunification might well arise, the GAL cannot be heard to complain, after the fact, that a procedure which she never requested, and which was different from the norm in Family Division reviews of a neglected child's placement, ought to have been utilized.
D. The Court's Authority to Issue the Order.
The GAL argues that the order conditionally releasing S.C.M. to the mother, while the J.'s retained legal custody, exceeded the judge's authority. We disagree. The applicable statute vests the trial court with considerable latitude in crafting a disposition designed to reunite the family while safe-guarding the well-being of the child. See D.C.Code §§ 16-2323(d), -2320(a) (1989).
Section 16-2323(d) provides:
If the [Family] Division finds that the commitment of the child to a department, agency, institution or person other than the parent is no longer necessary to safeguard the welfare of the child, the Division may order:
(1) the child returned to the home and the provision of supervision or other services; or
(2) any other disposition authorized by section 16-2320(a).
(Emphasis added). Section 16-2320(a), in turn, provides the court with six different options, one of which reads as follows:
The Division may make such other disposition as is not prohibited by law and as the Division deems to be in the best interests of the child....
D.C.Code § 16-2320(a)(5).
In this case, the judge proceeded cautiously. She transferred physical but not legal custody of S.C.M. to the mother, so that, as she explained at the hearing, "we can make sure things are going all right before we take the more formal legal step of placing your daughter back with you in protective supervision." The judge did not exceed her authority.
E. The Court's Alleged Failure to Consider the Best Interests of the Child.
The GAL contends that the trial judge abused her discretion by failing to consider the best interests of the child. The judge indicated that she did consider S.C.M.'s interests, and we take her at her word.
In child neglect cases, as in all proceedings affecting the future of a minor, the decisive consideration is the best interests of the child. In re S.G., 581 A.2d 771, 785 (D.C.1990). "[A] child's best interests are *406 presumptively served by being with a parent, provided that the parent is not unfit." Id.; see also L.W., supra, 613 A.2d at 355-56.
The trial judge stated during the course of the hearing that our system "has as its goal certainly the best interests of the child but also . . . permanency and family reunification." This statement, in our view, effectively capsulizes the relevant considerations, and we have no reason to believe that the judge failed adequately to consider S.C.M.'s welfare. It is important to note here that no party was requesting termination of the mother's parental rights, and no petition to adopt S.C.M. was pending. Insofar as a possible permanent solution was concerned, reunification was the only available option. Protracted retention in temporary foster care is generally not in a child's interest. See, e.g., Smith v. Organization of Foster Families, 431 U.S. 816, 835-36 & n. 37, 97 S. Ct. 2094, 2105 & n. 37, 53 L. Ed. 2d 14 (1977) (citations omitted).[12]
F. Visitation.
The order of July 26, 1994 does not provide for visitation between S.C.M. and the J.'s. Because the mother vehemently opposed such visitation, the judge, in announcing her oral decision,[13] thought it best to leave it to the mother's therapist, who would be working with the mother, to help the mother to resolve her feelings and to allow visitation. The GAL complains that the judge has improperly delegated her judicial function by this arrangement and, at least implicitly, that the J.'s should have been permitted to visit S.C.M.
We note at the outset that while S.C.M. was living with M.J. and C.J., the judge left it to the probation officer, in consultation with mental health professionals, to determine whether unsupervised visitation would be authorized. So far as we can determine from the record, no objection was interposed by any party to this apparent delegation, although the GAL vigorously objected to the fact of overnight visitation. The GAL likewise did not object to the denial of visitation rights, or to delegation of authority insofar as visitation by the J.'s was concerned, either during the July 26, 1994 hearing or in her subsequent motion for a stay. Thus, even assuming, arguendo, the applicability to a non-parent legal custodian of the statement in Hamel v. Hamel, 489 A.2d 471 (D.C. 1985),[14] that "[i]t undoubtedly would be improper for a court to suspend visitation until such time as a physician deems appropriate," id. at 475, it does not appear that the point was ever presented to the trial court.
Moreover, this appeal was taken from the order of July 26, 1994. It is not apparent from the face of that order that the interests either of S.C.M. or of the J.'s were impaired by the judge's decision. If S.C.M.'s therapist authorized visitation, there would be no cause for complaint. If the therapist took a contrary position, then the trial judge would surely be available to review her decision. We perceive no basis for reversal of the July 26 order on the visitation issue.[15]
*407 V.
CONCLUSION
For the foregoing reasons, the order appealed from is hereby
Affirmed.[16]
NOTES
[1] For some reason not apparent from the record, the guardian ad litem did not sign the stipulation, although a line for her signature appears on the document.
[2] The doctor concluded in her report, among other things, that S.C.M.'s communication skills were insufficient for her to have related this allegation of abuse to her mother.
[3] The probation officer further stated that
"I also see a mother who is trying. She has tried. You know, she has fallen. She has gotten back up."
[4] This motion was apparently based on the events surrounding the emergency hearing on July 15, 1994, which the GAL did not attend, and on alleged ex parte communications between the judge and the court's own probation officer.
[5] The trial judge's concern was apparently precipitated by the report of the probation officer for the October 27 review which revealed the existence of serious problems with S.C.M.'s placement. The probation officer noted that the mother had moved in with a new paramour (not S.C.M.'s father) without notifying the probation officer. The couple lived in one room of a small "unkempt" apartment with several other adults; the mother's boyfriend revealed that S.C.M. slept "on the floor, sometimes the bed." The mother lied pervasively to the probation officer, claiming, among other things, that the boyfriend was a college graduate (he said he had never attended college). The mother had missed all of her appointments, had attended only sporadically the Mother/Infant Program in which she had been directed to participate, and had generally failed to comply with the conditions upon which S.C.M. had been released to her.
The probation officer reported that she had agonized over the issue of removal.... It seemed the inevitable disturbing conclusion but at what cost. [S.C.M.] would most definitely be traumatized
. . . .
This has been a disappointing review period. [D.M.] has not met the challenge of effectively parenting [S.C.M.]. Deceit compromises trust, and [D.M.], in our opinion, is precipitously close to a recommendation of removal.
(Emphasis in original). The probation officer nevertheless recommended that S.C.M. remain conditionally released to her mother, predicated upon "strict adherence to outlined conditions."
[6] Although the trial court lacks jurisdiction to modify an order from which an appeal has been taken, it retains jurisdiction to enforce it. See, e.g., Floyd v. Leftwich, 456 A.2d 1241, 1243 (D.C. 1983).
[7] No party has challenged our jurisdiction to entertain this appeal. We conclude, for the reasons stated in the text, that the order is appealable as an interlocutory order granting an injunction within the meaning of D.C.Code § 11-721(a)(2)(A) (1989); cf. D.C.Code §§ 16-2328, -2329 (1989).
[8] We note that the judge, apparently entertaining some doubt as to the extent of her authority given the pendency of the appeal, conscientiously invoked the procedure recommended in Smith v. Pollin, 90 U.S.App.D.C. 178, 180, 194 F.2d 349, 350 (1952), and requested a remand. Although, in light of our decision, this measure has proved unnecessary, it is often wise to obtain clarification where appropriate and if time permits.
[9] According to the brief for the J.'s,
M.J. had driven the mother to the hospital to deliver the baby, stood by the mother in the delivery room while the child was born, entered his name on the birth certificate, bought the child's crib, contributed to the child's support, drove the mother to drug rehabilitation sessions, and otherwise manifested his great love for the child.
[10] We note that, because M.J. is not S.C.M.'s parent, the court's order did not interfere with a parent-child relationship.
[11] In fact, the GAL wrote in her own Report, prepared in connection with the disposition hearing in May, 1993, that "if the [c]ourt determines that [S.C.M.] should be returned to her mother's custody," certain preparatory steps should be taken first. She was thus obviously aware that reunification with the mother was contemplated in the future; the probation officer's March 15, 1994 report told her that such a proposal would be considered at the July 26 review.
[12] We are not unmindful of the unfortunate conditions that led to S.C.M.'s removal from the home. The judge's request for a limited remand reflects that she, too, is concerned about the situation, especially in light of the probation officer's October 1994 report. We are therefore confident that the judge will monitor the situation carefully and promptly take steps to protect S.C.M. if her physical or emotional welfare is endangered. To paraphrase one of our precedents, the "humane and impartial judge acting as parens patriae in [S.C.M.'s] behalf [will] surely be loath to take [any unnecessary] risk with this child's future...." L.W., supra, 613 A.2d at 354-55.
[13] The judge's written order contains no provision regarding visitation rights.
[14] See also Lewis v. Lewis, 637 A.2d 70, 72-73 (D.C.1994); Shapiro v. Shapiro, 54 Md.App. 477, 458 A.2d 1257, 1259 (Md.Ct.Spec.App.1983). Because it has been established that M.J. is not the father of S.C.M., the only basis of which we are aware for his claim of a right to visitation is his status as legal custodian.
[15] According to the probation officer's report of October 27, 1994, the J.'s were not then being permitted to visit S.C.M., the therapist being of the opinion (with which the probation officer agreed) that if visitation were allowed, S.C.M. would be caught in the middle of the tension between the young adults. The trial court's disposition of the issue in light of that report is not before us. We note, however, that the judge remarked at the July 26 hearing that if S.C.M.'s contact with the J.'s were terminated, it would be "extremely hard for her to have any comprehension of why these people, who ... up until now have been terribly important to her and loved by her, are no longer in her life." See also In the Interest of Ashley K., 212 Ill.App.3d 849, 156 Ill. Dec. 925, 949-50, 571 N.E.2d 905, 929-30 (Ill.App. 1st Dist.1991), in which the appellate court emphatically reversed an order denying visitation right to long-term foster parents on somewhat comparable facts.
[16] The GAL's motion for recusal has not been acted upon by the judge, and it would be premature for us to address it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903521/ | Order of the Appellate Term of the Supreme Court, First Department, entered on or about August 31, 2011, which affirmed an order of the Civil Court, New York County (Manuel J. Mendez, J.), entered on or about September 23, 2010, denying petitioner landlord’s motion for leave to renew and/or reargue an order of the same court and Judge, entered on or about May 26, 2010, which, in turn, had denied petitioner landlord’s motion for summary judgment on its claim for electrical charges in a commercial nonpayment summary proceeding, unanimously reversed, on the law, with costs, and petitioner’s motion for summary judgment on the claim for electrical charges granted.
There is no ambiguity in the relevant clauses of the parties’ lease agreement which, in accordance with their plain meaning, require respondent tenant to pay monthly electric charges in addition to the basic rent (see W.W.W. Assoc, v Giancontieri, 77 NY2d 157, 162 [1990]). Beginning with article 44, which provides for a “rent free” month, it is clear that electric charges are separate and apart from basic rent. Indeed, during the “rent free” month respondent was required to pay the electric charges.
Article 45 sets forth a schedule of the annual rental rate for each year. For example, for the period September 1, 2008 through August 31, 2009, the annual rental rate was $100,000, payable in equal monthly installments of $8,333.33. Article 46 sets forth the electrical charges, providing that the annual electric charges are $9,534, payable monthly at $794.50. The first sentence of article 46 clearly states that basic rent “exclusive of additional rents and charges” is based on the schedule set forth in paragraph 45. Thus, basic rent was unambiguously intended to exclude additional rent and charges, including electricity, as well as the real estate taxes and cost of living adjustment provided for in article 49.
*524The second section of article 46 does not require a different conclusion. The pertinent portion of that section provides, “Tenant hereby covenants, undertakes and agrees that during the term of this lease Tenant will pay annual rent inclusive of electrical usage charges in monthly installments as hereinbefore provided” (emphasis added). This language does not intend that the basic annual rent is inclusive of electrical charges. Rather, the language, properly read, means that tenant agrees to pay basic annual rent and the electrical usage charges in monthly installments as provided in the prior portion of article 46. Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. [Prior Case History: 32 Misc 3d 142(A), 2011 NY Slip Op 51633(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903522/ | PerCuriam.
Respondent was admitted to the Bar by this court in 1954. He maintained an office for the practice of law in the Town of Van Etten, Chemung County, until May 15, 1985, when he was suspended from practice by this court for six months following a determination that he was guilty of numerous violations of the Code of Professional Responsibility in his dealings with a decedent’s estate (Matter of Gallow, 110 AD2d 920). Respondent has not applied for reinstatement.
In the instant proceeding to discipline respondent for professional misconduct, petitioner moves to confirm the report of the Referee to whom the matter was referred. In that report, the Referee sustained all six charges of professional misconduct brought against respondent.
The first three charges arise out of respondent’s handling of the property and affairs of Helen L. Meyer. At the time respondent began his representation of Meyer in 1980, she was an 84-year-old woman with no immediate family. Charge I alleges that respondent converted Meyer’s funds and assets to his own use, neglected a matter entrusted to him and involved himself in impermissible conflicts of interest. The several specifications detailing this charge aver that respondent, between 1981 and 1985, received over $30,000 from Meyer for services allegedly performed for her, although no records were kept explaining the exact nature of the services; that in 1983 respondent arranged for Meyer to make a $16,000 loan to the Larisons, who were clients of respondent and principals in a corporation in which he owned stock; that respondent failed to arrange for adequate security for this loan which the Larisons defaulted upon; and that in 1985 respondent obtained a check purportedly signed by Meyer in the amount of $10,000 although, at the time of this transfer, Meyer was incapable of understanding the nature of this payment due to diminished mental capacity. Finally, it is alleged that in 1984 Meyer signed a deed prepared by respondent whereby her home in Spencer, New York, was transferred to respondent and his wife with Meyer reserving a life *804interest; respondent made no payment nor gave any other consideration for this transfer and Meyer was not represented by independent counsel in the transaction and was suffering from diminished mental capacity at the time.
Charge II alleges that respondent obtained two uncollateralized loans from Meyer, in the amounts of $10,000 and $3,000, making no payments on the principal of the first loan and no payments at all on the second loan.
Charge III alleges that respondent failed to maintain complete records of his client’s funds and failed to render appropriate accounts to her. Specifically, it is alleged that from July 1984 to June 1985, respondent, acting pursuant to a power of attorney, paid himself over $5,000 from Meyer’s checking account for which he has no records and is unable to account.
Charges IV and V concern respondent’s representation of the estate of Edward M. Thomas. Charge IV alleges that respondent neglected the estate by failing to settle it, leaving some estate debts unpaid for over two years after Thomas’ death. Respondent is also alleged to have failed to resolve a claim against the estate made by the Social Security Administration and failed to safeguard a quantity of cash belonging to the estate resulting in the loss of these funds.
The substance of charge V alleges that respondent involved himself in an impermissible conflict of interest and failed to carry out a contract of employment with Thomas. It appears that respondent entered into an oral contract with Thomas whereby the latter transferred his home to respondent who was to sell the property after Thomas’ death. Respondent was to pay Thomas’ debts out of the proceeds of the sale and then divide the remainder between himself, Betty Allen and Joann Fretz. The transfer to respondent was made and Thomas died two weeks later. Respondent thereafter sold the property to one Fleming for $18,000, taking a purchase-money mortgage from Fleming for $17,000. The mortgage and note, which were not signed by Fleming until eight months after the conveyance and were not recorded as of October 1986, listed only respondent and Joann Fretz as mortgagees; Betty Allen was not included as a mortgagee. As of October 1986, the only payment made by respondent from the proceeds of this transaction was a $90 payment to Fretz.
The four specifications of charge VI allege that respondent repeatedly failed to cooperate with petitioner in its investigation of the Thomas inquiry.
The proof adduced at the Referee’s hearing amply supports *805the Referee’s report finding respondent guilty of all six charges of professional misconduct. The evidence establishes that in both the Meyer and Thomas matters, respondent gained the trust of aged and ill clients and then used that trust to divert their assets to himself and others. While respondent claims that Meyer’s funds were utilized for her living expenses and the maintenance of her property, or for professional services rendered by him, the complete failure on his part to maintain adequate records and the frequency and amounts of the withdrawals belie this contention as to substantial sums of money. Respondent’s obvious neglect and mishandling of the affairs of these individuals in indicative of serious misconduct; his conversion of their assets to his own use and the use of others is unconscionable and warrants severe discipline.
Respondent has a history of disciplinary violations including his previously mentioned 1985 suspension from practice for a period of six months (Matter of Gallow, 110 AD2d 920, supra). In this prior disciplinary proceeding, respondent was found guilty of misconduct in his handling of an estate wherein he paid himself legal fees and reimbursed himself for expenses out of the estate without court approval. He also loaned estate funds to third parties with whom he had a business interest without obtaining security for the loan. In addition, he was found guilty of failure to cooperate with petitioner in its investigation of the charges. We also note that on at least two prior occasions, respondent has been admonished by petitioner for similar misconduct.
Considering respondent’s past history of professional misconduct and failure to cooperate with petitioner, together with the current findings of serious malfeasances in his dealings with Meyer and the Thomas estate, we are compelled to conclude that the protection of the public, the deterrence of similar misconduct and the preservation of the reputation of the Bar warrant respondent’s disbarment.
Respondent ordered disbarred, effective immediately. Weiss, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2678284/ | Case: 13-40426 Document: 00512661577 Page: 1 Date Filed: 06/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40426
FILED
June 12, 2014
Lyle W. Cayce
EMPIRE INDEMNITY INSURANCE COMPANY, Clerk
Plaintiff - Appellee
v.
N/S CORPORATION; JALIN, LIMITED, doing business as My Car Wash,
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:11-CV-166
Before BARKSDALE, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Jalin, Ltd. (Jalin) and N/S Corporation (N/S) challenge the 16 August
2011 denial of N/S’ motion to transfer venue (joined by Jalin) and the 15 March
2013 summary judgment awarded Empire Indemnity Insurance Company
(Empire) in its action, under diversity jurisdiction, seeking a declaratory-
judgment. AFFIRMED.
* 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: 13-40426 Document: 00512661577 Page: 2 Date Filed: 06/12/2014
No. 13-40426
I.
In 2004, N/S manufactured and sold allegedly defective car-wash parts
to Jalin, which opened a car wash in December 2004, in Plano, Texas. In the
relevant time period, N/S purchased commercial general liability (CGL)
insurance policies from Liberty Surplus Insurance Corporation (Liberty).
Liberty issued two CGL policies to N/S for the policy periods 1 July 2004 to 1
July 2005 and 1 July 2005 to 1 July 2006; each policy had a limit of liability for
$1 million per occurrence and $2 million aggregate (per policy). In addition,
Empire issued an umbrella liability policy to N/S, for the period 1 July 2004 to
1 July 2005, providing excess coverage of $5 million.
In January 2008, Jalin sued N/S in Texas state court for damages caused
by allegedly defective parts (underlying action). Liberty defended N/S; Empire
monitored the proceeding and allegedly participated in mediation. In March
2011, following trial in the underlying action, the jury returned a verdict
finding, inter alia, N/S negligently caused damages to Jalin; damages exceeded
$3 million.
Three weeks after that verdict, Empire filed this action (coverage action),
against N/S, Jalin, and Liberty, seeking a declaratory judgment that it had no
duty to indemnify N/S for the underlying action. Defendants filed cross-claims
regarding Liberty’s duty to indemnify. This action was referred to a magistrate
judge (MJ).
N/S moved, in May 2011, for transfer of venue in this coverage action to
the United States District Court for the Central District of California (district
in California). Jalin joined the motion; Empire and Liberty opposed it. The
MJ issued a report and recommendation that the motion be denied. In August
2011, the district court adopted the MJ’s report and recommendation and
denied the motion.
2
Case: 13-40426 Document: 00512661577 Page: 3 Date Filed: 06/12/2014
No. 13-40426
In April 2012, approximately 13 months after the underlying-action
verdict, N/S, Jalin, and Liberty executed a settlement agreement, mutually
releasing all claims against each other. That agreement also included a
covenant not to execute on the then-unfiled judgment in the underlying action.
As part of the settlement, Liberty agreed to pay Jalin $650,000; N/S, to pay
Jalin $450,000 and assign to it any claims N/S had against Empire. (The
settlement resolved all claims between N/S, Jalin, and Liberty in the
underlying and coverage actions, and those claims have been dismissed, except
for Jalin’s negligence claim against N/S, addressed below. The only remaining
issues in this coverage action relate to Empire’s claimed duty to indemnify
N/S.)
The settlement included Jalin’s seeking entry of judgment in the
underlying action only on its negligence claim. Accordingly, in June 2012, the
Texas state court entered judgment, awarding Jalin approximately $3.1
million, as well as pre- and post-judgment interest and costs.
Following entry of the underlying-action judgment, Empire moved in
this coverage action for summary judgment on four grounds: (1) its insured,
N/S, was not, and would never be, legally liable for the judgment, based on the
full release and covenant not to execute; (2) Liberty’s policy limits were not
exhausted, and, therefore, Empire’s excess coverage was not triggered; (3) the
damages were either not covered by Empire’s policy or fell outside its policy
period; and (4) N/S violated Empire’s policy by assigning its rights to Jalin.
In December 2012, the MJ filed a report and recommendation that
Empire’s summary-judgment motion be granted on the first ground (N/S never
legally liable for the underlying-action judgment), without reaching the other
three. On 15 March 2013, following a review of both the MJ’s report and
recommendation and defendants’ objections, the district court adopted the
3
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No. 13-40426
report and recommendation and granted summary judgment to Empire, based
on ruling that, due to Jalin’s unconditional release, N/S had no legal liability
to pay the underlying-action judgment.
II.
Unlike Jalin and N/S, Liberty did not appeal. Jalin and N/S claim the
district court erred: in denying N/S’ motion, joined by Jalin, to transfer venue
to the district in California; and in granting summary judgment to Empire.
A.
Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil
action to any other district . . . where it might have been brought”. Denial of a
transfer-venue motion is reviewed for abuse of discretion. E.g., Broussard v.
State Farm Fire and Cas. Co., 523 F.3d 618, 631 (5th Cir. 2008). For the
reasons that follow, the district court did not abuse its discretion.
Appellants contend the district court erred because this coverage action
is simply a dispute between a California entity (N/S) and its insurers (Liberty
and Empire). Appellants assert: the policies were negotiated, signed, and
issued in California, and this coverage action could have been brought in the
district in California, based on its ties with the insurance policies, the insured
(N/S), and Jalin’s contracting with, and purchasing goods from, N/S.
Appellants further assert the district court was required to review the
private and public factors provided by this court to determine convenience and
the interest of justice. See In re Volkswagen of Am., Inc., 545 F.3d 304, 315
(5th Cir. 2008) (en banc) (listing factors). Contending that each of those factors
either favored transfer or was neutral, Appellants maintain it was an abuse of
discretion to deny transfer. They contend, inter alia, that all “key witnesses
and business records” are in California, the district in Texas has “very little
4
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No. 13-40426
local interest” in the coverage dispute, and the relevant contacts are those to
the insurance agreement, not to the location of the insured risk.
The MJ analyzed the motion to transfer, and, following a de novo review,
the district court adopted that report and recommendation. Assuming
California had personal jurisdiction over Jalin, we agree with the district
court’s analysis of the private and public factors. See Empire Indem. Ins. Co.
v. N/S Corp. (Empire I), No. 4:11-CV-166, 2011 WL 3648510, at *5–8 (E.D.
Tex. 20 July 2011). Particularly, almost all non-party witnesses and all
sources of proof needed to determine whether damages were covered by
Empire’s policy are in, or around, Texas, and subject to the district court’s
compulsory subpoena power. See Fed. R. Civ. P. 45(c) (place of subpoena
compliance). The district court was also correct that both districts had an
interest in the coverage action. Id. at *7 (citing Mid-Continent Cas. Co. v.
Petro. Solutions, Inc., 629 F. Supp. 2d 759, 767 (S.D. Tex. 2009) (holding venue
of underlying events and venue of the insurance policy have local interest)).
B.
A summary judgment is reviewed de novo, e.g., Citigroup Inc. v. Fed. Ins.
Co., 649 F.3d 367, 370 (5th Cir. 2011), and should be granted when “the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law”, Fed. R. Civ. P. 56(a). “In reviewing
summary judgment, we construe all facts and inferences in the light most
favorable to the nonmoving party.” Citigroup, 649 F.3d at 371 (citation and
internal quotation marks omitted).
For this diversity action, and pursuant to Texas law, the insured bears
the burden of showing a claim is potentially covered by the policy, and the
insurer bears the burden of establishing applicability of any policy exclusion
or other affirmative defense. See United Nat’l Ins. Co. v. Hydro Tank, Inc., 497
5
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No. 13-40426
F.3d 445, 448 (5th Cir. 2007). Under Texas law, general contract rules and
standards govern interpretation of an insurance policy. E.g., Citigroup, 649
F.3d at 371. A court’s “primary goal is to give effect to the written expression
of the parties’ intent”. Id. (citing Balandran v. Safeco Ins. Co. of Am., 972
S.W.2d 738, 741 (Tex. 1998)). When the policy language is susceptible to only
one reasonable interpretation, it is not ambiguous and must be interpreted as
a matter of law. Id. (citing Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746
(Tex. 2006)).
The district court, based on the MJ’s report and recommendation, held:
“Jalin gave a full release prior to entry of the [underlying-action] judgment”,
Empire Indem. Ins. Co. v. N/S Corp. (Empire II), No. 4:11-CV-166, 2013 WL
1103061, at *2 (E.D. Tex. 15 Mar. 2013); “[a]t the time of the final judgment in
state court, N/S had no legal obligation to pay anything”, id.; therefore, “as a
matter of law, the condition that N/S ‘be obligated to actually pay’ an amount
finally determined by judgment was not, and could never be, met”, id.; and
“N/S was not and is not legally liable for any judgment, verdict, or any other
indebtedness as a result of the underlying action”, id. Accordingly, the court
held Empire could not be liable to Jalin (through a direct claim or its
assignment from N/S) based on the underlying-action judgment against N/S,
when N/S was released prior to its entry. Id. at *1.
Appellants assert, under Texas law and public policy, that the timing of
the settlement, release, and covenant not to execute should be irrelevant to a
determination of coverage. See William M. Mercer, Inc. v. Woods, 717 S.W.2d
391, 398–99 (Tex. App. 1986), aff’d in part, rev’d in part on other grounds, 769
S.W.2d 515 (Tex. 1988) (holding covenant not to execute signed post-judgment
did not bar suit against insurer). Appellants further contend that, if an insured
is forced to assign its claims against the disclaiming insurer in order to secure
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No. 13-40426
a release and covenant not to execute and there is no evidence of collusion, the
settlement does not eliminate the legal obligation on the judgment. See id. at
398 (“[A] covenant not to execute will not obviate the existence of damages
when there is proof that an insured was forced to assign his rights . . . to obtain
that covenant”.); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Puget Plastics
Corp., 649 F. Supp. 2d 613, 625–26 (S.D. Tex. 2009) (barring bad faith or
collusion with claimant, “covenant not to execute against the insured . . . does
not release the insurance carrier from liability”). According to Appellants, each
of those circumstances exists here and N/S was acting to protect itself from
bankruptcy. Finally, Appellants assert the district court’s decision promotes
form over substance and discourages early settlement of disputes.
For the following reasons, Appellants’ contentions fail. Under Texas law,
“[a] release extinguishes any actual or potential claim the releasor may have
against the releasee”. Riley v. Champion Int’l Corp., 973 F. Supp. 634, 649
(E.D. Tex. 1997) (quoting Derr Constr. Co. v. City of Hous., 846 S.W.2d 854,
858 (Tex. App. 1992, no writ)); see also Dresser Indus., Inc. v. Page Petro., Inc.,
853 S.W.2d 505, 508 (Tex. 1993) (stating release “extinguish[es] the claim . . .
as effectively as would a prior judgment”). Following a release, the releasor
cannot sue the releasee’s insurer “because the release precludes the
prerequisite determination of [releasee’s] liability”. Angus Chem. Co. v. IMC
Fertilizer, Inc., 939 S.W.2d 138, 139 (Tex. 1997).
The Empire policy’s insuring agreement provides payment “for ‘ultimate
net loss’ in excess of the ‘retained limit’ because of . . . ‘property damage’ to
which this insurance applies”. The policy further provides that N/S’ “ultimate
net loss” is the amount for which it was “legally liable in payment of . . .
‘property damage’”, as determined by judgment or agreed upon in settlement.
7
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No. 13-40426
Pursuant to the pre-entry-of-underlying-action-judgment settlement
agreement between Appellants and Liberty, Jalin released N/S “from any and
all claims, causes of action, actions, judgments, liens, indebtedness, damages,
losses, liabilities, [and] demands . . . that [Jalin has] or may have against [N/S]
. . . related to the Underlying Action”. (Emphasis added.) Once N/S was
released, the subsequently-entered judgment was “merely a fiction and had no
legal effect”, because the claim, judgment and liability had already been
extinguished. Empire II, 2013 WL 1103061, at *2. Further, the settlement
agreement made clear: it was not an admission of liability; and the subsequent
judgment could not “in any way be used to imply the existence of any liability
to any Party” to the agreement. The unconditional release, therefore, meant
N/S was not, and could never be, legally liable for the underlying-action
judgment. As a result, N/S cannot satisfy the insuring agreement, and neither
N/S nor Jalin may require Empire to pay a judgment for which N/S, Empire’s
insured, was never liable.
Appellants present no precedent addressing pre-judgment release of
claims. Instead, they rely on precedent discussing the effect of post-judgment
covenants not to execute. See William M. Mercer, 717 S.W.2d at 398–99
(analyzing post-judgment covenant with actual damages shown by entry of
judgment); Nat’l Union Fire Ins., 649 F. Supp. 2d at 625–26 (analyzing post-
judgment covenant and noting “judgment from the Underlying Case [was]
never released”). These decisions do not affect our analysis. In fact, the only
opinion cited by either side discussing pre-judgment release of claims concluded
“the insured never became liable for [the judgment]”, and as a result, there was
no coverage. U.S. Fire Ins. Co. v. Lay, 577 F.2d 421, 423 (7th Cir. 1978).
Although the settling parties attempted to carve-out claims against
Empire by stating the agreement did “not release any claims against
8
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No. 13-40426
[Empire]”, this carve-out overlooks the effect of Jalin’s unconditional release of
N/S. In reaching the settlement, Appellants were advised by “attorneys of their
own choosing” and represented they understood “the terms . . . and effects” of
the agreement. They cannot avoid the effect of the unconditional release of
N/S by claiming they intended to preserve claims against Empire.
III.
For the foregoing reasons, both the denial of a transfer of venue and the
summary judgment are AFFIRMED.
9
Case: 13-40426 Document: 00512661577 Page: 10 Date Filed: 06/12/2014
PRISCILLA R. OWEN, Circuit Judge, concurring:
I concur in the judgment and in Parts I and II.A. of the panel’s majority
opinion. I would resolve the coverage issue on the basis that the underlying
primary insurance coverage was not exhausted. Accordingly, Empire’s excess
policy was never reached.
Empire’s policy provides:
SECTION I – INSURING AGREEMENTS
....
COVERAGE A. BODILY INJURY AND PROPERTY
DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay on behalf of the insured for “ultimate net
loss” in excess of the “retained limit” because of “bodily
injury” or “property damage” to which this insurance
applies. We will have the right to associate with the
“underlying insurer” and the insured to defend against
any “suit” seeking those damages. But
(1) The amount we will pay for “ultimate net loss”
is limited as described in SECTION IV – LIMIT
OF INSURANCE;
***
24. “Ultimate net loss” means the total amount of damages for
which the insured is legally liable in payment of “bodily
injury”, “property damage”, “personal injury”, or
“advertising injury[.]” “Ultimate net loss” must be fully
determined as shown in Condition 12. When Loss
Payable[.] . . .
***
20. “Retained limit” means the greater of
a. The sum of amounts applicable to any “claim” or “suit”
from
(1) “Underlying insurance”, whether such
“underlying insurance” is collectible or not, and
(2) Other collectible primary insurance, or
b. The “self-insured retention”
Case: 13-40426 Document: 00512661577 Page: 11 Date Filed: 06/12/2014
No. 13-40426
Empire was obligated under its policy to pay N/S’s “ultimate net loss” in
excess of the “retained limit.” It is undisputed that N/S’s self-insured retention
was $10,000, and that this self-insured retention was less than the amounts
from insurance described in paragraph 20(a) above. Accordingly, the “retained
limit” applicable in this case is determined by paragraph 20(a). Empire’s policy
required N/S to obtain primary insurance with a per-occurrence limit of at least
$1,000,000, and N/S obtained that primary coverage from Liberty. Liberty
paid only $650,000 to settle the underlying suit against N/S. N/S did not
exhaust its primary coverage, as it was required to do before it could access the
excess policy. 1
N/S’s payment of $450,000 is not included in the calculation. That was
part of the resolution of N/S’s disagreement with Liberty, the primary carrier,
as to whether the damages claimed in the underlying suit were included in the
property damage coverage of Liberty’s policy. Unless and until N/S insisted
that Liberty pay its policy limits and those limits were exhausted, N/S could
not access the excess coverage provided by Empire’s policy.
1 See, e.g., KLN Steel Prods. Co. v. CNA Ins. Cos., 278 S.W.3d 429, 443 (Tex. App.—
San Antonio 2008, pet. denied) (confirming that “the limits of the primary insurance must be
exhausted before the primary carrier has a right to require the excess carrier to contribute
to a settlement”) (emphasis and citation omitted).
11 | 01-03-2023 | 06-13-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/5903523/ | Casey, J.
Appeal from a judgment of the County Court of Albany County (Harris, J.), *806rendered November 21, 1986, which revoked defendant’s probation and imposed a sentence of imprisonment.
Defendant was previously sentenced on September 29, 1982 to 60 days in the Albany County Jail and five years’ probation upon his conviction of the crime of criminal sale of marihuana in the third degree. Since the date of that conviction, defendant has been arrested three times. As a result, defendant has received 14 days in the Albany County Jail, 90 days in the Schenectady County Jail and additional probationary terms. The instant petition asserting a violation of probation is the third filed against defendant since his conviction in 1982. This petition alleges that defendant violated the terms of his probation as the result of arrests and ultimate convictions, on August 6, 1986 in City of Schenectady Police Court, for operating a motor vehicle while intoxicated and for aggravated unlicensed operation of a motor vehicle in the first and second degrees. On November 14, 1986, after being fully advised of his rights and the possible sentence he could receive, defendant entered a plea of guilty to the instant violation of his probation. He was sentenced on November 21, 1986 to an indeterminate term of incarceration of 1 to 3 years.
Considering defendant’s past record of violations, his extensive criminal history and the fact that the sentence was not the maximum, we find no abuse of discretion in the sentence that was imposed. Accordingly, we affirm the judgment.
Judgment affirmed. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903542/ | Yesawich, Jr., J.
(1) Cross appeals from an order of the Surrogate’s Court *828of Columbia County (Leaman, S.), entered December 8, 1986, which, inter alia, assessed a surcharge against petitioner’s commissions as administrator, (2) appeal from an order of said court, entered February 26, 1987, which, inter alia, further surcharged petitioner’s commissions, and (3) appeal from an order of said court, entered May 13, 1987, which granted petitioner’s motion to reconsider the order of February 26, 1987 and, upon reconsideration, adhered to the same.
Decedent, Kenneth F. Campbell, died intestate in January 1981 leaving as heirs respondents, who are his nieces, and petitioner, his nephew. Petitioner was appointed administrator of decedent’s estate on April 16, 1981. The first attorney employed by petitioner died in September 1981, at which point a lawyer in the same office continued handling the estate until late 1983; they received $3,500 from the estate as compensation for their services. Petitioner then retained his present attorney who has requested $12,000 in fees for his services on behalf of the estate. Disposition of the estate has been unusually protracted considering its simplicity (primarily liquid assets to be distributed to three heirs of equal kinship).
On June 6, 1986, a hearing was held to determine whether petitioner’s final accounting should be approved or whether certain of respondents’ objections should be deemed meritorious. Following pretrial discussions, the parties stipulated that five issues were to be considered; because respondents have abandoned their cross appeal, only two are relevant here: (1) whether, and in what amount, to surcharge petitioner for counsel fees allowable to the present estate attorney, and (2) as set out by Surrogate’s Court in its decision, "the propriety of directing the estate to pay [respondents’] attorneys’ fees”. Surrogate’s Court found (1) that although the current estate attorney’s fee of $12,000 is reasonable, petitioner should be surcharged for $3,500 thereof, and (2) that petitioner should also be surcharged, out of his commissions, for respondents’ reasonable legal fees and related disbursements incurred by them in connection with the trial of the objections to the accounting. Petitioner appeals from so much of the court’s orders as impose surcharges against his commissions.
If an administrator maladministers an estate, or otherwise acts improperly, commissions may be denied or surcharged (see, e.g., Matter of Roberts, 19 AD2d 391, 396). In the instant case, Surrogate’s Court granted petitioner’s commissions but surcharged them in an amount equal to the fees of the estate’s first two attorneys to reflect the cost of duplicative work the estate’s current attorney had to perform, the unusual delay in *829administering this relatively simple estate, and the improper administration of the estate, such as late payment of Federal tax, with resultant penalties. This determination is well within the discretion of Surrogate’s Court (see, Matter of Greatsinger, 67 NY2d 177, 181) and is supported by the record evidence.
Surrogate’s Court is also empowered to charge an administrator personally for legal expenses incurred in establishing the latter’s wrongdoing (see, Matter of Garvin, 256 NY 518, 521-522; Parker v Rogerson, 49 AD2d 689, 690). However, petitioner maintains that the stipulation the parties entered into prior to the hearing that spawned the orders being reviewed limited this issue to whether respondents’ legal fees and other disbursements should come from the estate; if this is so, the court improperly went beyond the scope of the stipulated issue (see, Nishman v De Marco, 76 AD2d 360, 368-369, appeal dismissed 53 NY2d 642) in surcharging petitioner for those fees and disbursements. Because the actual stipulation is not in the record, the matter must be remitted for a determination of how this issue was indeed framed by the court and the parties. It goes without saying that if it was agreed that the court was to consider whether respondents’ legal expenses were to be exacted from petitioner, he must be afforded an opportunity, on remittal, to defend himself on that question.
Orders entered December 8, 1986 and February 26, 1987 modified, on the law, without costs, by reversing so much thereof as assessed payment of respondents’ legal fees and disbursements against petitioner; matter remitted to the Surrogate’s Court of Columbia County for further proceedings not inconsistent with this court’s decision; and, as so modified, affirmed.
Appeal from order entered May 13, 1987 dismissed, as academic, without costs. Kane, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903543/ | Harvey, J.
Appeal from that part of an order of the Supreme Court (Bryant, J.), entered January 15, 1987 in Tompkins County, which reduced defendant’s maintenance obligation to $40 per week.
Plaintiff and defendant were married in 1946. Thirty years later, in 1976, defendant left plaintiff and commenced living with another woman. Plaintiff obtained a judgment of divorce in June 1984 on the ground of abandonment. During the *830eight-year period between defendant’s abandonment and plaintiffs procuring the judgment of divorce, defendant did not pay any support to plaintiff. The judgment of divorce divided the marital property and plaintiff was awarded, inter alia, a one-fifth interest in defendant’s pension and $75 per week maintenance. Subsequent to the entry of the divorce judgment, defendant remarried.
On June 1, 1986, defendant retired, at age 62, from his position as a research technician in the metallurgy department at Cornell University. Immediately following his retirement, defendant made a motion to modify the amount of maintenance he was required to pay plaintiff. Supreme Court reduced the maintenance obligation to $40 per week. Dissatisfied with the reduction and believing that his maintenance obligation should have been reduced to zero, defendant appealed. Plaintiff has not cross-appealed.
In order to be entitled to a modification of maintenance, the moving party has the burden of demonstrating a substantial change of circumstances (see, Domestic Relations Law § 236 [B] [9] [b]; Dowdle v Dowdle, 114 AD2d 699, 700). Determining whether a substantial change has occurred and the extent of relief occasioned by such a change are matters addressed to the discretion of the trial court, with each case turning on its particular facts (Dunn v Dunn, 124 AD2d 309, 310; Dowdle v Dowdle, supra, at 700). Here, the record reveals that defendant is currently living in a house with his new wife, that they own three vehicles and that defendant can afford to pursue various recreational activities. Further, it appears that defendant could supplement his income with part-time work if he so desired. While plaintiff’s position has certainly improved since the parties’ separation and subsequent divorce, she is retired and lives modestly in a mobile home. A review of the record and Supreme Court’s decision reveals that the court adequately analyzed the parties’ current financial positions and came to a reasoned conclusion as to the amount of maintenance defendant should pay.
Defendant complains that Supreme Court erred in considering his new wife’s assets in making its determination. We cannot agree. In his financial affidavit, defendant listed expenses incurred by both him and his new wife. Since these expenses were submitted and considered, it follows that resources which defendant undeniably had access to should also be properly considered. The marriage unquestionably improved defendant’s financial condition. As noted by Supreme Court, defendant has maintained the same level of living as *831prior to his separation and divorce, whereas plaintiffs has decreased markedly. Until such time as defendant can demonstrate that these resources are no longer being enjoyed by him, it was not an abuse of discretion for Supreme Court to take this factor into account under the broad authority granted pursuant to Domestic Relations Law § 236 (B) (6) (a) (11).
The remaining contentions have been considered and found unpersuasive.
Order affirmed, with costs. Mahoney, P. J., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1769540/ | 523 S.W.2d 874 (1975)
Junetta ALLEN, Respondent,
v.
DOROTHY'S LAUNDRY AND DRY CLEANING COMPANY, Employer, and
Miller's Mutual Insurance Agency of Illinois, Insurer, Appellants.
No. KCD 27279.
Missouri Court of Appeals, Kansas City District.
May 5, 1975.
Motion for Rehearing and/or Transfer Denied June 2, 1975.
Application to Transfer Denied July 14, 1975.
*875 John C. Russell, Raytown, for appellants.
John C. Milholland, A. J. Anderson, Harrisonville, for respondent.
Before SWOFFORD, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
ROBERT R. WELBORN, Special Judge.
Workmen's Compensation proceeding. Referee of Division of Workmen's Compensation denied claim for death benefit. Industrial Commission affirmed ruling of referee. Circuit court reversed and ordered allowance of claim. Employer and insurer appeal.
The decisive facts are set out in the findings of the referee, as follows:
"I find from the evidence that on April 21, 1972 [Orville T. Allen] was shot by a berserk rifleman on the streets of Harrisonville, Missouri, and that as a result of such shooting the employee died on April 24, 1972. At the time of the shooting the deceased was in the process of delivering laundry to Capitol Cleaners, a laundry and dry cleaning establishment located just off of the square in Harrisonville. Just prior to the shooting of the employee, the rifleman had shot and killed two Harrisonville policemen and subsequently shot and wounded the sheriff of Cass County. For a period of several months prior to April 21, 1972 the square in Harrisonville had been frequented by groups of young people described as `hippies' who on occasion blocked traffic on the streets around the square, directed profane language at citizens around the square and engaged in other breaches of the peace. However, there were no incidents involving the use of guns prior to the shooting on April 21, 1972. The killers' (sic) motive is obscure, but the evidence would tend to indicate that he was a radical protestor of some sort rebellious against society in general.
"The first issue for decision is whether the deceased Orville T. Allen, was an employee of the alleged employer, Dorothy's Laundry and Dry Cleaning Company, while engaged in delivering laundry pursuant to an arrangement for such delivery between the alleged employer and Capitol Cleaners. [The affirmative finding on this issue is not controverted. The basis of the finding is, therefore, omitted.]
"The second issue for decision is whether the employee sustained an accident arising out of his employment. The claimant [widow of employee] contends that the case is compensable under the so-called `street risk doctrine' and/or the `assault doctrine', and under the latter more particularly since the 1969 amendment of Sec. 287.120 RSMo 1969 [V.A.M.S.] defining the term `accident' to include `injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.'
"The `positional risk theory' which makes an accident compensable if claimant's employment caused him to be at the place where it happened has not been accepted or followed in Missouri. Liebman v. Colonial Baking Company, [Mo.App.] 391 S.W.2nd, 948. Likewise, the Liebman case is authority for the proposition that the risk of assault is not a hazard of the street within the meaning of the `street risk doctrine.' I find, therefore, that claimant cannot recover on either the `positional risk theory' or `street risk doctrine' upon the facts presented.
"With respect to the `assault doctrine' I find that the case at hand is one of `neutral origin', meaning that the assault was not attributable to the employment on any more rational basis than that the employment offered convenient occasion for the attack to take place. Such an assault has not been heretofore held compensable in *876 Missouri. Liebman v. Colonial Baking Company, 391 S.W.2nd, 948.
"I find that the assault upon the employee was unprovoked and accordingly conclude that he sustained an `accident' as that term is contemplated by Section 287.020-2 and Section 287.120-1 as amended, RSMo 1969, [V.A.M.S.]. However, I further find such accident did not arise out of the employment. If it was the intention of the legislature to change the law which heretofore made situations like those found in the Liebman case and Kelley v. Sohio Chemical Company, [Mo.] 392 S.W.2nd, 255 not compensable, the term `accident' used in the amendment, should have been expanded to read `accident arising out of and in the course of the employment.'"
The circuit court disagreed with the referee's conclusion as to the meaning and effect of § 287.120, subd. 1, RSMo 1969, V.A.M.S., and concluded that the 1969 amendment, referred to by the referee, made an unprovoked assault in the course of employment a compensable accident. This was a conclusion of law and appellants' contention that the circuit court's action was a prohibited substitution of its conclusion for a factual finding of the referee is without merit. § 287.490, subd. 1, RSMo 1969, V.A.M.S.
The language of § 287.120, subd. 1, referred to by the referee and the matter at the crux of the issue here presented, is the last sentence of the subparagraph, which in its entirety reads:
"If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term `accident' as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person."
The last sentence was added by the General Assembly in 1969. Laws of Mo. 1969, p. 390. The amending legislation made this sole change. In attempting to arrive at the proper meaning and effect of the change, a look at the law as it stood at the time is in order.
In Liebman v. Colonial Baking Company, 391 S.W.2d 948 (Mo.App.1965), the law of this state regarding the compensability of injury resulting from assault upon a workman is well summarized (391 S.W.2d 951-952):
"The assault doctrine has been fully developed in Missouri. It is possible to illustrate its scope and method by examples remarkably free of the contradictions that have attended its use in some other jurisdictions. Assaults divide conveniently into three classes. Larson's Workmen's Compensation Law, Sec. 7, p. 48 et seq.; Sec. 11, p. 131 et seq.; Kelly [Kelley] v. Sohio Chemical Co., Mo.App., 383 S.W.2d 146, 147.
"1st: Those which are invited by the dangerous nature of the employee's duties, or by the dangerous environment in which he is required to perform them, or are the outgrowth of frictions generated by the work itself, but which, in either event, are invariably revealed to be the result of some risk directly attributable to the employment. Injuries resulting from assaults of that character are compensable in Missouri. * * *
"2nd: Those committed in the course of private quarrels that are purely personal to the participants. Injuries resulting from assaults of that character are non-compensable in Missouri. * * *
"3rd: Irrational, unexplained or accidental assaults of so-called `neutral' origin, which, although they occur `in the course of the victim's employment, cannot be attributed to it on any more rational basis than *877 that the employment afforded a convenient occasion for the attack to take place. In some jurisdictions that circumstance is regarded as a sufficient reason for awarding compensation; but not in Missouri. * *
"In every Missouri case involving an assault of `neutral' origin compensation has been denied. The rationale in each, insofar as it is pertinent to the issue before us, has been that the risk of unprovoked assault is no more logically attributable to one man's employment than to another's unemployment, and that the mere fact that the employment provided a convenient opportunity for the assault to take place, as by bringing the victim and his assailant together at the point where it occurred, is insufficient to establish any causal connection between the employment and the injury, or to show that the latter was a rational consequence of the former."
A short time later, the assault doctrine was before the Supreme Court en banc in Kelley v. Sohio Chemical Company, 392 S.W.2d 255 (1965). In that case, employee, alone in the office of her employer, heard footsteps and when she turned was struck in the head. She was found unconscious sometime later. The employee did not know the assailant. Nothing had been disturbed in the office. In affirming the denial of compensation the court held that the claimant had failed to sustain her burden "to show some direct causal connection between the injury and the employment." 392 S.W.2d 257. Two judges dissented in Kelley. They would have applied the rule that "when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment; * * *." 392 S.W.2d 259.
Appellants' first contention here is that the 1969 amendment did not alter the requirement of the remainder of the section that the assault arise out of and in the course of the employment. Without conceding that it in fact does so, appellants alternatively advance the suggestion that the amendment might in effect provide a statutory basis for the presumption which the dissenters sought to apply in Kelley, but still permit a rebuttal of the presumption by evidence showing that the assault did not arise out of the employment. They contend that there was evidence here which explained the assault so that the referee was authorized to conclude as he did that the injury was not the result of an accident in the course of employment.
The respondent predicates the 1969 amendment upon a perceived necessity to change the law as applied in Kelley. She contends that the legislature by the amendment intended to and did make "unprovoked assaults" compensable accidents. Her contention is that the meaning and effect of the amendment is the same as it would have been had the legislature provided: "The term `accident arising out of and in the course of his employment' shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person."
As a starting point for the resolution of the problem presented, it must be presumed that the legislature, by the 1969 amendment, intended to change or clarify the existing law. "In the construction of statutes, the courts start with the assumption that the legislature intended to enact an effective law, and the legislature is not to be presumed to have done a vain thing in the enactment of a statute." 73 Am.Jur.2d, Statutes, § 249, p. 422 (1974). The difficulty here arises because the change was attempted to be made by addition of a statutory definition of the term "accident" as used in § 287.120. The term "accident" is elsewhere defined in § 287.020, subd. 2. That is the definition which has given rise to the problem presented by cases such as the "abnormal strain" situations. See Carroll, "Present Concept of Accident under Missouri Workmen's Compensation Law," *878 21 Mo.Bar Journal 208 (1965). The assault cases actually presented no problem under § 287.020, subd. 2, because the injury resulting from an assault was not questioned as having been the result of an "accident."
The problem with assaults was not whether the incident was an accident, but whether it was an accident "arising out of and in the course of his employment" under § 287.120. The analysis of the assault cases in Liebman, supra, clearly shows the problem which those cases presented. However, if appellants' primary analysis of the effect of the 1969 amendment is to be accepted, the effect of the amendment would be to have written into § 287.120 a superfluous definition of the term "accident," while retaining the requirement that the assault arise out of and in the course of employment. To adopt such a construction would convict the General Assembly of having enacted a meaningless piece of legislation, a result to be avoided if any other logical, rational construction of the amendatory legislation is permissible.
Appellants' alternative suggestion that the amendment was intended to apply only to "unexplained" assaults, such as in the Kelley case, would require the insertion of that limitation in the amendatory langage, which is directed only at "unprovoked" assaults.
Turning to respondent's construction of the statute, she relies on the presumption that the amendment was designed to have some meaning and effect. She also points to § 1.010, RSMo 1969, V.A.M.S., calling for the liberal construction of acts of the General Assembly "so as to effectuate the true intent and meaning thereof." Although not mentioned by respondent, note also is to be taken of § 287.800, a legislative declaration applicable expressly to the Workmen's Compensation Law, calling for its liberal construction "with a view to the public welfare * * *." Respondent argues that the legislature clearly intended to bring injury or death resulting from an unprovoked assault within the coverage of the Workmen's Compensation Act, and that the legislature accomplished this purpose by making the definition of "accident" applicable to the term "as used in this section," inasmuch as the term is used in § 287.120 to describe only "compensable accident." She concludes that since the term "accident" in § 287.120 is used in connection with the language "arising out of and in the course of his employment" the meaning of the amendment is the same as if it actually read: "The term `accident arising out of and in the course of his employment' shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person."
Acceptance of this construction is difficult, however, inasmuch as it would eliminate both the requirement that the assault occurred in the course of employment and that it arise out of the employment. Inasmuch as the problem in assault claims arises with respect to the latter requirement, there would appear to have been no reason for the elimination of the first requirement, which was found to have been met in this case.
Although the language of the 1969 amendment leaves considerable to be desired, considering the problem which the amendment appears to have been intended to solve, the requirement that effect be given the amendment, if at all possible, the requirement of liberal construction of the law, and the oft-stated principle that doubts in the construction of the Workmen's Compensation Law are to be resolved in favor of the employee (Henderson v. National Bearing Division, 267 S.W.2d 349, 853[4] (Mo.App.1954); Baer v. City of Brookfield, 366 S.W.2d 469, 471[6] (Mo.App.1963); Todd v. Goostree, 493 S.W.2d 411, 416[1-6] (Mo. App.1973)), the trial court properly construed the amendment to eliminate in this case of a "neutral" unprovoked assault which arose in the course of employment, the necessity for an affirmative showing *879 that the assault arose out of the employment. The 1969 amendment to § 287.120, in defining "accident" to include an unprovoked assault supplies that requirement for a compensable claim in a case such as this. Therefore, the trial court correctly rejected the holding of the referee and the Industrial Commission that the 1969 amendment did not have such effect.
Judgment affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5907537/ | Defendant’s motion to amend this court’s order entered on June 23, 1988 (138 AD2d 169) granted, on consent, insofar as to amend the decretal paragraph of said order, and the final full paragraph of the opinion of this court filed herein, to delete the balance of the sentence of such paragraphs of the order and opinion, after the word “facts,” and to substitute therefor the following: “and the indictment dismissed, with leave to the People, should they be so advised, to resubmit appropriate charges to *602another Grand Jury.” Concur — Kupferman, J. P., Kassal, Rosenberger, Ellerin and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826259/ | ORDER
MOODY R. TIDWELL, III, Judge:
This pro se tax refund case came before the court on parties' cross-motions for summary judgment. Plaintiff sought, amongst other relief, a refund of $1,349.44, the amount collected by the Internal Revenue Service in satisfaction of plaintiff’s income tax liability for the 1984 tax year.
FACTS
Michael S. Ross, plaintiff, an individual, cash-basis taxpayer, was employed from the fall of 1983 to the spring of 1984 by the Los Angeles County Unified School District as a day-to-day substitute teacher. Plaintiff timely filed a 1984 Standard Form 1040 income tax return and W-2 income statement, stating that plaintiff had received $13,699.99 in 1984 but claiming that no taxes were due and that plaintiff was entitled to refund of the taxes withheld. After the claim was denied and plaintiff was informed of further tax liability, plaintiff filed a claim for refund (Form 843) with the Fresno, California Service Center of the Internal Revenue Service. The claim was disallowed because plaintiff did not state a basis for the changes in the Standard Form 1040 figures that he indicated on his refund claim. Plaintiff then chose to bring suit in this court under the Tucker Act, 28 U.S.C. § 1491(a)(1) (1982).
Plaintiff attempted to file quite a number of various motions, ranging from criminal claims, appeals, and draft orders, all with serious substantive or procedural defects. A motion for attorney fees was also brought by plaintiff for costs incurred in previous actions involving the Naval Reserve and plaintiffs alleged improper discharge for chronic schizophrenia. The attorney fees motion was dismissed by the Order of this court on June 3, 1988. Two documents opposing and replying to defendant’s cross-motion for summary judgment were allowed to be filed by Order of this court thereby providing a foundation upon which the court could rule.
DISCUSSION
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. RUSCC 56(c). In evaluating a motion for summary judgment, any doubt over whether there is a genuine issue of material fact must be resolved in favor of the non-moving party. Housing Corp. of America v. United States, 199 Ct.Cl. 705, 710, 468 F.2d 922, 924 (1972); Campbell v. United States, 2 Cl.Ct. 247, 249 (1983). In addition, the inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion for summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). The court is of the opinion that there are no genuine issues of material fact in dispute and that this case is properly before the court for disposition on cross-motions for summary judgment.
It was difficult to determine from plaintiffs motion exactly what he was seeking. Ross’ incoherent pleadings seemed to allege a multitude of claims against the federal government, “several thousand” attorneys, the U.S. Naval Reserve, the Los An-geles County Unified School District, its payroll officer, and countless others. In addition, the plaintiff was intent on relit-igating matters that have long since been dismissed by this and other courts. Ross v. United States, 227 Ct.Cl. 690 (1981); Ross v. United States, 220 Ct.Cl. 689, 618 F.2d 122 (1979); Ross v. United States, 204 Ct.Cl. 816 (1974); Ross v. United States, 620 F.2d 311 (9th Cir.1980).
Plaintiff’s rambling narrative appeared to focus on three issues.1 First, plaintiff *643alleged that because his employer misreported the income on his 1983 and 1984 W-2 income statement forms, his stated tax liability was also incorrect. Second, plaintiff claimed that he had been unfairly denied tax exempt status, and that this denial affected his tax liability for 1984. Finally, plaintiff challenged the authority of the federal government to garnish his wages and seize his bank account.
Misreported Income
Plaintiff alleged that his assessed tax liability was incorrect due to the improper reporting of income by his employer on his W-2 form. Plaintiff contended that he was paid in 1984 for work performed in late 1983, and that his 1983 W-2 form reflected too small a sum while the 1984 W-2 indicated an inflated income. As such, plaintiff argued that he was entitled to a refund, because the determining factor for computing taxes was the year in which the income was actually earned.
The general rule for determining exactly what income is included in which taxable year is found in 26 U.S.C. § 451(a) (1982), which provides:
a. General Rule. — The amount of any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless under the method of accounting used in computing taxable income, such amount is to be properly accounted for as of a different period.
Individual, cash-basis taxpayers who do not keep books and have no annual accounting period use the calendar year as their taxable year for the purpose of determining taxable income. 26 U.S.C. § 441 (1982). Thus, a cash-basis taxpayer is to be taxed on income in the year in which it is received. Plaintiffs W-2 form indicated that he received $13,699.96 from his employer in 1984. Since plaintiff was an individual, cash-basis taxpayer, this income was properly taxed during 1984, the year of receipt. It is irrelevant to this analysis that some of the money allegedly earned in 1983 might have been reported as 1984 income. In Price v. Commissioner, 52 T.C.M. (CCH) 1038 (1986), a case similar to the one at bar, plaintiff argued that he was entitled to report an award of back pay, granted during 1981, in 1979 and 1980, the periods in which he claimed to have earned the income. The court, relying primarily on § 451(a), held that plaintiffs income was earned in the year of receipt and that the Internal Revenue Service had correctly determined that the entire award of back pay was to be treated as taxable income in 1981. Id., at 1040.
Exemption
Plaintiff also argued, without any supporting documentation, that his employer should never have withheld Federal income tax from his paycheck because he was “exempt” from such withholding. Plaintiff claimed that he was improperly denied tax-exempt status pursuant to 26 U.S.C. § 3402(n) (1982), which allows an individual who anticipates no tax liability to avoid having tax withheld from his wages. In particular, § 3402(n) states:
Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding exemption certificate ... furnished to the employer by the employee certifying that the employee—
(1) incurred no liability for income tax imposed under subtitle A for his preceding taxable year, and
(2) anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year.
Individuals seeking withholding exemptions are required to file Treasury Form W-4E certifying that no federal tax liability was incurred in the preceding tax year and that there will be no anticipated liability for the current year. United States v. *644Shimek, 445 F.Supp. 884, 890 (M.D.Pa.1978). Plaintiff did not allege that he completed Form W-4E nor was there evidence in the pleadings that plaintiff ever complied with the statute’s requirements. The elaborate procedure for withholding taxes established by § 3402 may not be undermined “by permitting the taxpayer to avoid withholding with a mere unsupported, undocumented claim of exemption that is not subject to administrative review.” Pascoe v. I.R.S., 580 F.Supp. 649, 653 (E.D.Mich.1984). As plaintiff did not qualify for exempt status, any claims relating to such are barred.
Even if plaintiff had been exempt from withholding, that status would not have changed his ultimate tax liability. The amount withheld from plaintiff's salary was not even half the taxes owed on plaintiff’s 1984 income of $13,699.96. Plaintiff seemed to imagine that 26 U.S.C. § 3402(n) permitted an exemption from all income tax. This obviously was not the case. Section 3402(n) merely gave plaintiff an option: you can either pay the government now, or you can pay it later.
Collection of Taxes
Finally, plaintiff challenged the legality of defendant’s seizure of his bank accounts and garnishment of his wages as a means of collecting his tax liability. Under 26 U.S.C. § 6331 the United States has the authority “to collect such tax ... by levy upon all property and rights to property.” It is quite clear that accrued salaries are property and rights to property subject to levy. Sims v. United States, 359 U.S. 108, 110, 79 S.Ct. 641, 644, 3 L.Ed.2d 667 (1959). In addition, § 6331(e)(1) describes such a levy on salary or wages and its duration. In the case of a bank account, the I.R.S. has the power to distrain a taxpayer’s account and has a duty to do so when the taxpayer refuses to pay federal taxes. Abney v. Campbell, 105 F.Supp. 740 (N.D.Tex.1952), aff'd., 206 F.2d 836 (5th Cir.1953). It is thus clear that the government had the power to both garnish plaintiff’s wages and seize his bank accounts once it had been determined that he had been delinquent in paying his taxes. As such, defendant acted within its authority when it garnished plaintiff’s assets as a means to collect his tax deficiencies.
CONCLUSION
Based on the facts and law set forth above, this court finds, assuming all plaintiff’s allegations are true, that plaintiff’s claims are without merit. Leniency was afforded plaintiff in all allowable matters. Kelley v. Department of Labor, 812 F.2d 1378, 1380 (Fed.Cir.1987). The court holds that the alleged misreporting of income was irrelevant given the clear language of 26 U.S.C. § 451. Plaintiff’s contention that he was wrongfully denied “exempt” status pursuant to 26 U.S.C. § 3402(n) is unsupported and ultimately immaterial to the facts of the case. Lastly, it is without question that given the tax liability still owed by plaintiff, the government had the authority to garnish the plaintiff's wages and seize his bank accounts until that liability had been satisfied. Accordingly, plaintiff’s motion for summary judgment is denied. Defendant’s cross motion for summary judgment is allowed and its motion to strike is granted.2 The Clerk is directed to dismiss plaintiff’s complaint with prejudice. Costs to defendant.
IT IS SO ORDERED.
. In addition to these substantive issues, plaintiff asserted that defendant's motion for summary judgment was improper since it was filed more than sixty days after plaintiff’s motion. *643However, this issue was moot because the court granted defendant an extension of time in order to file its cross-motion for summary judgment and its opposition to plaintiffs motion for summary judgment.
. The stricken material contained statements that were impertinent, scandalous, and constituted groundless and possibly libelous personal attacks against defendant’s counsel. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903525/ | Harvey, J.
Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered August 28, 1986, upon a verdict convicting defendant of the crime of burglary in the third degree.
This case involved two Cornell University security patrolmen and a safe located in that university’s athletic business office in Teagle Hall, a university-owned building. After experiencing the loss of money on a number of occasions apparently from the safe in the athletic office, the university authorities caused to be set up a hidden camera with a view of the safe. Movement triggered the operation of the camera causing the camera to take sequential photographs with the use of infrared light. Shortly after midnight on December 9, 1985, the camera was set in operation and photographs revealed defendant and his codefendant, Kevin M. Rankin, opening the safe and examining the contents thereof. Both *807were security patrolmen. The safe contained money bags which, at that particular time, contained nothing but shredded paper.
Both defendant and Rankin made statements to officers of the security force which implicated them in an attempt to commit larceny. The two men were indicted for the crime of burglary in the third degree. At the trial both defendant and Rankin conceded through a judicial admission that they "were at the business office of Teagle Hall on the Cornell University Campus on December 9, 1985, at about 12:19 A.M., and one of the purposes of such presence was to steal money from the safe at the business office”. At the close of the prosecution’s case, defendant and Rankin moved to dismiss the indictment contending that the presence of the two security patrolmen in Teagle Hall was licensed or privileged and, consequently, the entry into the building and their presence therein was lawful. The motion was denied, the case submitted to the jury and a verdict of guilty was handed down as to both defendant and Rankin.
Defendant appeals on essentially the same argument that he used in County Court. He contends that by the university’s having given him certain keys which would permit entry to practically every building on campus, he had the lawful right to enter all such buildings. It was not disputed that he was given the necessary keys. However, the People contended that the authority to enter buildings was limited to the patrolman’s necessary performance of a duty within the building but not to an entry for personal reasons.
The crime of burglary in the third degree is committed when a person "knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20). The issue as to whether defendant knowingly entered or remained unlawfully in the building was given to the jury to determine after an adequate charge as to the law. On this appeal, defendant does not contend that there was error in the charge. Viewing the evidence in the light most favorable to the People, we believe that there was sufficient evidence for the jury to conclude that defendant’s entrance into Teagle Hall was neither licensed nor privileged (see, People v Powell, 58 NY2d 1009, 1010; People v Czerminski, 94 AD2d 957). Although the evidence was not entirely consistent, the jury could have concluded that a patrolman’s usual duties did not require defendant to actually enter the business office of the athletic department; that defendant did not report the performance of any duty in Teagle Hall on his routine duty *808report; that there was no university interest to be served by defendant’s entry; and that the mere issuance of a key to a patrolman did not give him carte blanche to enter buildings on the campus. We conclude that the evidence established beyond a reasonable doubt that defendant’s entry into Teagle Hall was without license or privilege and, therefore, was unlawful.
Judgment affirmed. Kane, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903526/ | Harvey, J.
Appeal from a judgment of the Supreme Court (Swartwood, J.), entered March 30, 1987 in Chemung County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Defendant was convicted, following a jury trial, of the crimes of rape in the first degree, robbery in the first degree and assault in the second degree. He was sentenced to concurrent terms of imprisonment of 12 Vi to 25 years on the rape and robbery convictions, which were to run consecutively with a 3ti-to-7-year term for the assault conviction. The judgment of conviction was affirmed without opinion by the Appellate Division, First Department (65 AD2d 679) and leave to appeal was denied by the Court of Appeals (46 NY2d 844). Petitioner initiated this proceeding alleging that his conviction and sentence were tainted by numerous errors. Supreme Court denied the application for a writ of habeas corpus. This appeal followed.
Habeas corpus is not an appropriate remedy to raise issues which could have been advanced on direct appeal or in a motion pursuant to CPL article 440 (People ex rel. Milwood v Kuhlmann, 136 AD2d 784; People ex rel. Davis v Coombe, 97 AD2d 667). Here, the facts petitioner asserts in support of his application were known at the time of his direct appeal or could have been asserted in a CPL article 440 motion. The allegations in the petition do not merit departure from traditional orderly procedure (see, People ex rel. Keitt v McMann, 18 NY2d 257). We further note that based upon the papers before this court, petitioner’s arguments are, as determined by Supreme Court, meritless. Accordingly, the judgment of Supreme Court should be affirmed.
Judgment affirmed, without costs. Mahoney, P. J., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903528/ | Levine, J.
Appeal from a judgment of the Supreme Court (Berke, J.), entered June 19, 1987 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for failure to exhaust administrative remedies.
In January 1987, petitioner, an inmate at Washington Correctional Facility, filed a formal grievance complaining that there were no signs posted at the facility outlining inmate behavior and prohibitions in both English and Spanish as required by Correction Law § 138 (1). Following a hearing on the grievance, the Inmate Grievance Resolution' Committee unanimously recommended that such signs be posted and that recommendation was appealed to the Superintendent of the facility. The Superintendent denied the grievance and petitioner appealed to the Central Office Review Committee (hereinafter CORC). The appeal was subsequently denied.
Although the grievance procedures delineated in Correction Law § 139 and 7 NYCRR 701.11 provide for CORC decisions to be referred to the Commission of Correction and, ultimately, to the Commissioner of Correctional Services for final review, petitioner commenced a CPLR article 78 proceeding without going through those steps, contending that further administrative review would be futile. Respondents moved to dismiss the petition on the ground that petitioner had failed to exhaust his administrative remedies under 7 NYCRR 701.11 (d). Supreme Court granted respondents’ motion and dismissed the petition without prejudice. This appeal ensued.
In our view, the petition was properly dismissed. Although petitioner correctly points out that the Commission of Correction’s recommendation would not be binding on the Commissioner of Correctional Services, that does not render these administrative steps futile. The consideration of the matter by the Commission of Correction is a prerequisite to review by the Commissioner of Correctional Services, who does have the power to reverse CORC decisions and issues the final administrative determination (see, Correction Law § 139 [3]; 7 NYCRR 701.11 [d]). Moreover, there is nothing in the record which indicates that the Commissioner of Correctional Services has *811predetermined this issue. Hence, petitioner has failed to show that further pursuit of administrative remedies would be futile (see, Matter of Grattan v Department of Social Servs., 131 AD2d 191, 193).
Judgment affirmed, without costs. Mahoney, P. J., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903529/ | Yesawich, Jr., J.
Appeal (1) from a judgment of the Supreme Court (McDermott, J.), entered December 2, 1986 in Albany County, upon a verdict rendered in favor of plaintiffs, and (2) from an order of said court, entered July 31, 1987 in Albany County, which denied defendant’s motion to set aside the verdict.
Plaintiff Edith L. Martin was injured when the car she was driving failed to negotiate a curve to the right, instead continuing straight ahead where it collided with an oncoming vehicle in the latter’s lane of travel, just over the center line. Witnesses at the accident scene described the road surface as slippery, icy and covered with a thin glaze of clear ice referred to as "black ice”. Martin and, in a derivative action, her husband brought suit against defendant on the theory that in maintaining this macadam county highway, including plowing and sanding it for many years, defendant deposited snow and ice control materials, such as sand and cinders, on the shoulder of the road; that this material built up the shoulder, which normally slopes away from the paved portion of the road, to such an extent that it was higher than the pavement, causing water from melting snow to run across the highway (rather than into a nearby ditch) where it froze into an invisible film of ice which brought about Martin’s accident; and that defendant was aware for some time that this portion of the road, located in a shaded area called the "wood curve”, was prone to become slick and freeze over.
Defendant introduced testimony that the shoulder was sloped correctly, that there may have been precipitation at the scene prior to the accident and that Martin contributed to the accident by her own negligence. A unanimous jury found defendant 75% negligent and Martin 25% negligent and awarded damages accordingly. Defendant appeals, urging, among other things, that there were substantial errors in the charge, that Supreme Court improperly marshaled the evidence and that the verdict was against the weight of the evidence.
At the outset, we note that the verdict was supported by the *812evidence. While plaintiffs’ expert did not state that water running across the highway caused the ice to form on the day of the accident or even that the accident was caused by the icy road, these conclusions were readily inferable by the jury from the evidence presented in that they were not beyond the ken of an ordinary juror (cf., Dougherty v Milliken, 163 NY 527, 533). Giving plaintiffs the benefit of every reasonable inference the record provides (see, Stanton v Niagara Mohawk Power Corp., 116 AD2d 800, 802), the verdict is sustainable.
Although the instructions given to the jury could have been improved upon by prudent reference to appropriate sections of New York’s pattern jury instructions for civil cases, the assignments of error raised by defendant do not demonstrate the quantum of prejudice required to justify a new trial (see generally, 1 Newman, New York Appellate Practice § 2.05, at 2-23—2-24). Defendant specifically, and quite rightly, complains that the terms "negligence” and "proximate cause” were not defined by Supreme Court. Their meaning, however, was readily discernible from the context in which they were used in the charge. And while the instruction given on comparative negligence was not conventional, the jurors obviously comprehended its meaning, for in their special verdict they apportioned fault appropriately between the parties. Supreme Court’s failure to instruct the jury, though requested to do so, regarding a particular local law, the terms of which are not in the record but are said to require prior written notice of any defective or hazardous highway condition, was harmless in light of the thrust of plaintiffs’ proof that defendant affirmatively created the condition here (see, Waring v City of Saratoga Springs, 92 AD2d 1080). The court’s explanation regarding the effect of the no-fault carrier’s lien against the judgment was necessitated by the testimony elicited from Martin by defendant that medical expenses had been paid by her insurance. Furthermore, the parties’ summations are not recorded, nor are they recounted in the briefs, making it impossible to assess what impact comments, if indeed any were made, respecting plaintiffs’ receipt of third-party benefits, may have had on the jury. Finally, the effect of any distortion occasioned by Supreme Court’s extensive marshaling of the evidence was blunted by its caveat to the jurors that they were the sole determiners of the facts (see, Altman v Deepdale Gen. Hosp., 124 AD2d 768, 769).
Judgment and order affirmed, with costs. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2428173/ | 434 F. Supp. 2d 133 (2006)
Gershon JACOBSON, on behalf himself and other similarly situated, Plaintiff,
v.
HEALTHCARE FINANCIAL SERVICES, INC., Defendant.
No. 04-CV-3268 (ILG).
United States District Court, E.D. New York.
June 6, 2006.
*134 Lawrence Katz, Katz & Kleinman, for the Plaintiff.
David J. Gold, Esq., for the Defendant.
MEMORANDUM AND ORDER
GLASSER, Senior District Judge.
INTRODUCTION
In this putative class action Gershon Jacobson ("Plaintiff') alleges that Healthcare Financial Services ("Defendant") sent a debt collection letter that violated 15 U.S.C. § 1692g(a)(3) of the Fair Debt Collection Practices Act ("FDCPA"). Before *135 the Court is Defendant's motion to dismiss under Rule 12(b)(6) for failure to state a claim, as well as a request for costs, disbursements, attorney's fees and sanctions against Plaintiff and/or Plaintiff's counsel for instituting a frivolous lawsuit.
FACTS
On or about July 13, Defendant mailed a letter to Plaintiff demanding payment of a $492.00 debt. The letter, in its entirety, reads as follows:
This account has been assigned to our office for collection.
If your payment or notice of dispute is not received in this office within 30 days, we shall recommend further action be taken against you to collect this outstanding balance.
Note: that we have the right to report this debt to the appropriate credit bureau which might have a negative impact on your credit rating. Make your check or money order payable to Healthcare Financial Services.
Please read below. This communication is an attempt to collect a debt and any information obtained will be used for that purpose.
In compliance with the provisions of paragraph 809 of the Consumer Credit Protection Act, Amendments, you are hereby notified of the following:
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume the debt is valid.
If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgement and mail you a copy of such judgement or verification
If you request from this office in writing, within 30 days after receiving this notice, this office will provide you with the name and address of original creditor, if different from the current creditor.
DISCUSSION
I. Standards of Review
Defendant seeks dismissal under Fed. R. Civ. Proc. 12(b)(6) or, in the alternative, summary judgment. See, e.g., Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 573 (2d Cir.2005). Although Defendant's motion is properly construed as a motion for judgment on the pleadings under Rule 12(c) rather than a motion for failure to state a claim under Rule 12(b)(6), the standard for conversion to Rule 56 is the same under either rule. Compare Aetna Cas. and Sur. Co., 404 F.3d at 573 (holding that it is within the Court's discretion to convert a 12(b)(6) motion to summary judgment "when matters outside the pleadings have been presented and accepted by the Court, and where all parties have been given a `reasonable opportunity' to present materials pertinent to the motion's disposition.") with Sheppard v. Beerman, 94 F.3d 823, 828 (2d Cir.1996) (holding that a Rule 12(c) motion may be converted to a motion for summary judgment "if the court chooses to consider evidence extrinsic to the complaint and answer . . . [E]ach party shall be given a reasonable opportunity to present all material pertinent to a summary judgment determination".). See also In re G. & A. Books, 770 F.2d 288 (2d Cir.1985), cert. denied, 475 U.S. 1015, 106 S. Ct. 1195, 89 L. Ed. 2d 310 (1986) (essential inquiry in converting Rule 12 motion to dismiss into a Rule 56 motion for summary judgment is whether parties reasonably recognize the possibility of conversion or were deprived of a reasonable opportunity to meet facts outside the pleadings.). The parties acknowledge that the pertinent facts in this case are found in the letter Defendant sent to Plaintiff and reasonably anticipate that *136 the Court might grant judgment based upon the parties' submissions.
Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See also Celotex Corp. v. Catrett, 477 U.S. 317, 324-325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists when there is sufficient evidence favoring the nonmoving party such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To defeat a supported motion for summary judgment, the adverse party "must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.Proc. 56(e).
II. The Fair Debt Collection Practices Act
The enacted purpose of the Fair Debt Collection Practices Act is equally to "eliminate abusive debt collection practices," "to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged," and "to promote consistent State action." 15 U.S.C. § 1692(e). In separate subsections, the statute regulates the acquisition of information about a debtor and communications in connection with debt collection, see §§ 1692b, 1692c; prohibits harassment or abuse, the use of false or misleading representations and unfair practices by debt collectors, see §§ 1692d, 1692e, 1692f; grants a debtor subject to third-party collection efforts the right to have the debt validated, see § 1692g; and provides for a private right of action and civil liability as well as authorizes enforcement and reporting by the Federal Trade Commission. See §§ 1692k, 1692i, 1692m.
In analyzing claims brought pursuant to the Fair Debt Collection Practices Act, it is well-settled that this Court must employ a "least sophisticated consumer" standard. See, e.g., Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir.2005) (citing Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir.1993) (canvassing other Circuits)). See also Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). The least sophisticated consumer standard was imported from Federal Trade Commission Act jurisprudence and grounded in the conclusion that the FDCPA, like other consumer-protection laws, was "not made for the protection of experts, but for the publicthat vast multitude which includes the ignorant, the unthinking and the credulous." Clomon, 988 F.2d at 1318 (citing Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 143 F.2d 676, 679 (2d Cir.1944)) (quoting Florence Manufacturing Co. v. J.C. Dowd & Co., 178 F. 73, 75 (2d Cir. 1910)). Notwithstanding a certain logical incoherence to determining how the "least sophisticated consumer" would react to any conduct,[1] the least sophisticated consumer *137 standard is an objective standard which measures the questioned conduct "by how the `least sophisticated consumer' would interpret [it]," Russell, 74 F.3d at 34, but discards "unreasonable misinterpretations." Clomon, 988 F.2d at 1319.[2] The norm is crafted mindful that the statute "(1) ensures the protection of all consumers, even the naive and the trusting, against deceptive debt collection practices, and (2) protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices." Id. at 1320.
Though it has not directly held as much, the Second Circuit has characterized the FDCPA as a "strict liability" statute because any act that violates the regulations of the FDCPA as measured by the least sophisticated consumer standard gives rise to liability, regardless of whether the recipient of the letter suffered any actual damage as a result. See Russell, 74 F.3d at 33 (observing that the act "imposes strict liability."); Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 63 (2d Cir. 1993) (same); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir.2003) ("The FDCPA . . . permits the recovery of statutory damages up to $1,000 in the absence of actual damages."); Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir.1998) ("All that is required for an award of statutory damages is proof that the statute was violated, although a court must then exercise its discretion to determine how much to award, up to the $1,000.00 ceiling."). It may be helpful in the main to conceive of the statute as imposing strict liability against debt collectors, even though such a standard is not to be found in the statute. But at the outer bounds of the statute's application, strict liability damages are inconsistent with both the statutorily authorized affirmative defense of § 1692k(c)[3] and the statute's co-equal purpose of protecting scrupulous debt collectors. When a defendant has unintentionally made only a technical mistake, cognizable only under a standard that indulges the hypothetical, logically fallacious, least sophisticated consumer, see supra n. 1., the misapplication of statutory damages based on strict liability tort principles can give rise to questionable awards. This may have a punitive effect, despite the absence of the egregiousness typically associated with punitive damages. Cf. Parker v. Time Warner Entertainment Co., L.P., 331 F.3d 13, 22 (2d Cir.2003) (discussing "the effects of combining a statutory scheme that imposes minimum *138 statutory damages awards . . . with the class action mechanism that aggregates many claims.").
The interaction of the least sophisticated consumer standard with the presumption that the FDCPA imposes strict liability has led to a proliferation of litigation in this District. A cursory examination of the court's docket demonstrates an exponential growth in litigation under the statute from four cases in 2002, to nine cases in 2003, to twenty-two cases in 2004, to ninety-two cases in 2005 to eighty-five cases in only the first five months of this year. In the time during which this case has been under consideration, this Plaintiff has filed another case under the statute, on similar facts under a similar theory. See Jacobson v. R.T.R. Financial Services Inc., 05-cv-04216 (filed Sept. 6, 2005). There is one family with literally scores of claims filed on their members' behalf.[4] Ironically, it appears that it is often the extremely sophisticated consumer who takes advantage of the civil liability scheme defined by this statute, not the individual who has been threatened or misled. The cottage industry that has emerged does not bring suits to remedy the "widespread and serious national problem" of abuse that the Senate observed in adopting the legislation, 1977 U.S.C.C.A.N. 1695, 1696, nor to ferret out collection abuse in the form of "obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer's legal rights, disclosing a consumer's personal affairs to friends, neighbors, or an employer, obtaining information about a consumer through false pretense, impersonating public officials and attorneys, and simulating legal process." Id. Rather, the inescapable inference is that the judicially developed standards have enabled a class of professional plaintiffs.
The statute need not be applied in this manner; and indeed, this Circuit has recognized that courts should not countenance lawsuits based on frivolous misinterpretations or nonsensical assertions of being led astray. In Russell v. Equifax A.R.S., one of the most often quoted opinions on the "least sophisticated consumer" standard, the Circuit emphasized that "the test is how the least sophisticated consumer-one not having the astuteness of a `Philadelphia lawyer' or even the sophistication of the average, everyday, common consumer-understands the notice he or she receives." Russell, 74 F.3d at 34. This understanding of the least sophisticated consumer standard points away from closely parsing a debt collection letter like a municipal bond offering and towards a common sense appraisal of the letter.
It is interesting to contemplate the genesis of these suits. The hypothetical Mr. Least Sophisticated Consumer ("LSC") makes a $400 purchase. His debt remains unpaid and undisputed. He eventually receives a collection letter requesting payment of the debt which he rightfully owes. Mr. LSC, upon receiving a debt collection letter that contains some minute variation from the statute's requirements, immediately exclaims "This clearly runs afoul of the FDCPA!" andrather than simply pay *139 what he owesrepairs to his lawyer's office to vindicate a perceived "wrong." "[T]here comes a point where this Court should not be ignorant as judges of what we know as men." Watts v. State of Ind., 338 U.S. 49, 52, 69 S. Ct. 1347, 1349, 93 L. Ed. 1801 (1949).
Without doubt, the broadly sweeping regulations of the statute protect consumers from abusive debt collection practices. If, however, the enacted purpose of the statute is equally "to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged," 18 U.S.C. 1692(e), and the courts are to give life to the admonition in Clomon that the standards are intended to protect collectors against "bizarre or idiosyncratic interpretations of collection notices," 988 F.2d at 1320, the statute must be applied with some circumspection.
III. Plaintiffs Claim
15 U.S.C. § 1692g requires debt collectors to issue a "validation notice," either in the initial communication with a consumer or within five days of that initial communication, that informs the consumer of certain rights including the right to Make a written request for verification of the debt and to dispute the validity of the debt. See 15 U.S.C. § 1692g(a). Only if "a [validation] notice . . . contains language that overshadows or contradicts other language informing a consumer of her rights" does the notice violate the FDCPA. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 309 (2d Cir.2003) (quotations omitted). A validation notice that tracks the language of the statute is presumed to fulfill the statutory requirements. Greco v. Trauner, Cohen & Thomas, L.L.P. 412 F.3d 360, 365-66 (2d Cir. 2005). It is overshadowing or contradictory "if it fails to convey the validation information clearly and effectively and thereby makes the least sophisticated consumer uncertain as to her rights." Id. (citing Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir.1998)).
In this case, the validation notice contained in the final three paragraphs of the letter closely tracks the language of 15 U.S.C. § 1692g(a), and is thus presumptively valid.[5] Plaintiff contends, however, that the letter violates the statute in two ways. First, Plaintiff objects to Defendant's demand for payment within 30 days. Second, Plaintiff asserts that the statute-tracking language is overshadowed by the second paragraph, in which Defendant stated "[i]f your payment or notice of dispute is not received in this office within 30 days, we shall recommend further action . . ." (emphasis supplied). According to Plaintiff, this statement might lead the least sophisticated consumer to believe that he has 30 days from the date the letter was sent, rather than 30 days from the receipt of the letter, to dispute or pay the claim.
Plaintiff's first objection is ill-founded. Neither of the two cases cited by Plaintiff *140 supports his conclusion that the collection letter he received violates the statute by demanding payment or a notice of dispute within 30 days. In both Chauncey v. JDR Recovery Corp., 118 F.3d 516 (7th Cir. 1997) and Swift v. Maximus, Inc., 2004 WL 1576618 (E.D.N.Y.), the debt collector set forth conflicting statements, first demanding payment in full within 30 days, and only in separate language acknowledging that the consumer had the right to dispute the debt. See Chauncey, 118 F.3d at 518 ("Unless we receive a check or money order for the balance, in full, within thirty (30) days from receipt of this letter, a decision to pursue other avenues to collect the amount due will be made. Unless you notify this office within thirty (30) days after receiving this notice that you dispute the validity of this debt, or any portion thereof, this office will assume this debt is valid."); Swift, 2004 WL 1576618 at *3 ("The crucial sentence in the instant letter declares: `Payment in full of this debt must be received within 30 days after the date of this notice to avoid further collection activities.' The reverse side contained the validation notice."). In this case, Defendant issued a disjunctive demand, seeking either payment or notice of dispute within 30 days. Such a demand for immediate payment does not conflict with the statute when the Defendant also gives Plaintiff notice of his right to dispute the claim as an alternative to paying the debt in full. Cf. Savino, 164 F.3d at 86 (Defendant's "request for immediate payment did not, standing alone, violate the FDCPA.").
Plaintiffs second contention, that the disputed statement improperly "shortens the thirty-day statutory period by demanding that payment be made within thirty-days, which could be construed by the least sophisticated consumer as being from the date of the letter, as opposed to the statutory thirty-day period which only begins from the date of the actual receipt of the letter," similarly fails. (Pl. Mem. at 6) (citing Cavallaro v. Law Office of Shapiro & Kreisman, 933 F. Supp. 1148 (E.D.N.Y. 1996); McStay v. I.C. System, 308 F.3d 188 (2d Cir.2002)).
Cavallaro held that a validation notice that "stated that Plaintiff should dispute the debt `within thirty (30) days from the date of this notice' rather than, as mandatorily required by the statute, within 30 days of receipt of the notice" violated the statute. Cavallaro, 933 F.Supp. at 1154 (emphasis supplied). Nothing in that case spoke to a demand for payment within thirty days. Though the FDCPA requires a creditor to advise a debtor of his right to dispute a debt within 30 days of receiving the first collection communication, nothing in that statute prohibits a debt collector from demanding immediate payment of an outstanding debt; prohibiting such a demand for immediate payment would inexplicably turn the debtor/creditor relationship upside down when a delinquent debtor refuses to make good on his obligation.
In McStay, which affirmed the district court's grant of summary judgment for the defendant debt collector, the Court observed that the collection letter contained an "ambiguous statement" that might mislead about the right to dispute, but that "any confusion created by the ambiguity on the front of the letter dissipates when read in conjunction with the language on the back."[6]McStay, 308 F.3d at 191 (citing *141 Russell, 74 F.3d at 34). Rather than supporting Plaintiff's argument, McStay requires the conclusion that any ambiguity in the second paragraph of the letter Plaintiff received "dissipates" when read in conjunction with the additional language in the final three paragraphs of the letter. Id.
Neither Plaintiffs first contention that a demand for immediate payment violates the FDCPA, nor Plaintiffs second contention that the collection letter Plaintiff received improperly shortened the 30-day statutory dispute period, is supported by the relevant case law. Even were this letter parsed with microscopic scrutiny, a belief that the least sophisticated consumer would feel harassed, abused, misled or deceived would defy credulity. The Defendant's motion for summary judgment must be granted.
III. Defendant's Application for Attorney's Fees and Costs
In its motion for summary judgment, Defendant has requested attorney's fees and costs pursuant to 15 U.S.C. § 1692k(a)(3). That section provides that "on a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs." The fact that a defendant is entitled to summary judgment does not provide the basis for such a finding; there must be evidence that the Plaintiff both knew that his claim was meritless and pursued it with the purpose of harassing the defendant. See Spira v. Ashwood Financial Inc., 358 F. Supp. 2d 150, 161 (E.D.N.Y.2005) (noting that in addition to succeeding on the merits, defendant must meet the statutory standard of proving bad faith and harassment). See also Sierra v. Foster & Garbus, 48 F. Supp. 2d 393, 396 (S.D.N.Y.1999) (awarding defendant's attorney's fees where "[p]laintiff voluntarily abandoned his FDCPA claims once in order to have the case remanded back to state court, then he voluntarily discontinued its prosecution in state court, only to bring it once again in federal court."); Kahen-Kashani v. National Action Financial Services, Inc., 2004 WL 1040384, at *7 (W.D.N.Y. Apr.12, 2004) (denying claim for attorney's fees under FDCPA where defendant "has not provided evidence of plaintiffs bad faith (as opposed to allegation of plaintiffs counsel's bad faith) . . . and even if this Court wished to attribute counsel's conduct to the client, defendant has not proved the second element, that the suit was instituted for the purpose of harassment").
The Plaintiff acknowledged, by counsel's admissions at argument, see United States v. McKeon, 738 F.2d 26, 30 (2d Cir.1984), the validity of the underlying debt and that he did not feel harassed, threatened or misled by the letter. His mistaken belief that the alleged violation of the statute, arrived at merely by a strained construction of its language, constitutes per se harassment is, in essence, a complaint against the creditor for the temerity of requesting that he pay what he owes. Against this background, the Court grants the Defendant's request for costs and attorney's fees pursuant to 1692k(a)(3). Defendant's counsel is directed to submit the documentation required by New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir.1983).
SO ORDERED.
NOTES
[1] The Seventh Circuit, adopting an "unsophisticated" rather than "least sophisticated" consumer standard noted this incoherence, observing that "the least sophisticated consumer is not merely `below average,' he is the very last rung on the sophistication ladder . . . Even assuming that he would be willing to do so, such a consumer would likely not be able to read a collection notice with care (or at all), let alone interpret it in a reasonable fashion." Gammon v. GC Services Limited Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994). Similarly, one might posit that literally any statement, even something as benign as "Please pay the debt that you acknowledge you owe," could befuddle and confuse this least sophisticated creature. A fortiori the importance of importing a reasonableness standard into the analysis.
[2] The logical significance of an "unreasonable mis interpretation" as opposed to a mere "unreasonable interpretation" is not illuminated in Clomon. Suffice to say that what constitutes the "unreasonable misinterpretation" of a "least sophisticated consumer" is a bewildering standard leaving room for myriad reasonable and unreasonable interpretations.
[3] A debt collector may interpose as an affirmative defense that "the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." 15 U.S.C. § 1692k(c). Though it has been suggested in this Circuit that a mistake of law is not excused by this defense, see Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir.1989), the Circuit has not directly addressed whether the intent requirement for the § 1692k(c) defense requires the defendant to establish an absence of general or specific intent. On that point, this Court would find persuasive the reasoning in Johnson v. Riddle, 443 F.3d 723, 728 (10th Cir. 2006), which concluded that "the only workable interpretation of the intent prong of the FDCPA's bona fide error defense is that a debt collector must show that the violation was unintentional, not that the underlying act itself was unintentional." This interpretation is inconsistent with a strict liability regime.
[4] See, e.g., Spira et al v. Business Office Systems & Solutions, Inc., 05-CV-00622 (filed Jan. 8, 2006 by Bella Spira); Spira v. Paul Michael Marketing Associates, Inc., 04-CV-00040 (filed Jan. 7, 2004 by Devorah Spira); Spira v. Professional Claims Bureau, Inc., 06-CV-00820 (filed Feb. 24, 2006 by Eliezer Spira); Spira v. Conta, 05-CV-05337 (filed Nov. 14, 2005 by Gitel Spira); Spira v. Retrieval Masters Creditors Bureau, Inc., 06-CV-0067 (filed Jan. 5, 2006 by Joseph Spira); Spira v. Ashwood Financial, Inc. 04-CV-04607 (filed Oct. 26, 2004 by Miriam Spira); Spira v. CBC Companies, Inc., 06-CV-01210 (filed Mar. 17, 2006 by Nathan Spira); Spira v. Business Office Systems & Solutions, Inc., 05-CV-00622 (filed Feb. 3, 2005 by Shulem Spira).
[5] 15 U.S.C. § 1692g(a) requires that the debt collection letter include:
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
[6] The ambiguous statement "Please be advised that if after 30 days your account is not paid in full or otherwise closed, the account information will be forwarded to the National Credit Reporting Agencies," was cured by the statement on the reverse side of the letter that "[u]nless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid." McStay, 308 F.3d at 189. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1971272/ | 110 B.R. 168 (1990)
In re AMATEX CORPORATION, Debtor.
Bankruptcy No. 82-05220S.
United States Bankruptcy Court, E.D. Pennsylvania.
January 29, 1990.
Cheryl A. Ingram, Philadelphia, Pa., for debtor.
William J. Weiss, Philadelphia, Pa., for Asbestos Corp. Ltd. and Bell Asbestos Mines Ltd.
Pace Reich, Philadelphia, Pa., for Health Claimants Committee.
James M. Matour, Philadelphia, Pa., for Guardian ad litem.
David Zalesne, Philadelphia, Pa., for Carey Canada, Inc. and The Celotex Corp.
Myron A. Bloom, Philadelphia, Pa., for Unsecured Creditors' Committee.
William A. Meehan, Philadelphia, Pa., Guardian ad litem.
OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
Resolution of the instant objections by the Debtor, a former manufacturer of products containing asbestos, to a series of claims filed by co-obligors of claims for asbestos-related damages requires us to consider the scope of 11 U.S.C. § 502(e)(1)(B), which requires disallowance of contingent claims for reimbursement or contribution from a debtor. Following the lead of our colleague, the Honorable Bruce Fox, in In re Pacor, Inc., Bankr. Nos. 86-03251F and 86-03252F (Bankr.E.D.Pa. Oct. 25, 1989), we conclude that the scope of § 502(e)(1)(B), in conjunction with 11 U.S.C. § 509(a), operates to disallow any contingent co-liability, even if that co-liability has not been judicially established, unless the co-obligor pays the liability and becomes subrogated to the rights of the underlying creditor therefor. Since the claimants here did not pay the common underlying creditor, the objections must be sustained and the claims disallowed.
The history of this bankruptcy case is set forth in two recent decisions arising from the efforts of the Debtor to bring the proceeds of its liability insurance policies into the estate as a substantial resource for the funding of a Plan of Reorganization. See In re Amatex Corp., Amatex Corp. v. Aetna Casualty & Surety Co., 107 B.R. 856, 859-62 (E.D.Pa.1989) (adopting Report and Recommendations of Bankruptcy Judge of Oct. 10, 1989) (hereinafter "Amatex II"); and In re Amatex Corp., 97 B.R. 220, 221-13 (Bankr.E.D.Pa.), aff'd sub nom. Amatex Corp. v. Stonewall Insurance Co., 102 B.R. 411 (E.D.Pa.1989) (hereinafter *169 "Amatex I"). In those Opinions, we noted that this case, filed on November 1, 1982, had been largely inactive between April, 1985, until early 1988, when the court stimulated its progression. Since early 1988, counsel had proceeded to bring this case into shape for potential confirmation of a consensual Plan of Reorganization. The decision in Amatex II represented the consummation of the Debtor's efforts to recover proceeds from the insurers. On October 25, 1989, we approved the Debtor's Third Amended Disclosure Statement and established February 15, 1990, as the date to consider confirmation of its Third Amended Plan.
The process of filing objections to certain of the thousands of proofs of claim filed against the Debtor was commenced on August 25, 1989. The instant objections to the claims of Asbestos Corporation Ltd. (Claim No. 9723) and Bell Asbestos Mines Ltd. (Claim No. 9724) were filed on September 12, 1989 (hereinafter these claims are referred to collectively as the "Bell claims" and those claimants as the "Bell claimants"), and the objections to the claims of Carey Canada, Inc. (Claim No. 5329) and Celotex Corp. (Claim No. 5330) were filed on September 27, 1989 (hereinafter these claims are referred to collectively as the "Celotex claims" and those claimants as the "Celotex claimants"). All of these claims recited unliquidated sums for which the respective claimants may be liable jointly with the Debtor on asbestosis claims and concerning which asbestosis claimants consequently may have rights of contribution or indemnity against the Debtor. After two listings of each set of objections without resolution, a method for deciding the objections to the Bell claims was reduced to an Order of November 28, 1989, contemplating the filing of a Stipulation of Facts and briefing through December 22, 1989. On December 7, 1989, we entered a similar order regarding resolution of the Celotex claims, which also was to be completed on December 22, 1989.
Almost identical brief Stipulations of Facts were filed in reference to the Bell claims and the Celotex claims. Therein, it was recited that each claim was based upon rights for contribution, indemnity, and/or reimbursement from the Debtor for amounts for which asbestosis claimants may be liable. No judicial determination nor liquidated judgments have been entered against claimants or the Debtor holding them jointly and severally liable for asbestos-related injuries which would give rise to a claim for contribution. The claimants have not paid any amount of any claims asserted jointly and severally against claimants and the Debtor. Finally, the claimants do not allege any of their own injuries or damages from the Debtor, as opposed to claims for reimbursement or contribution.
In each objection, the Debtor asserted, alternatively, that either (1) it was not indebted to the claimant, or (2) that the claim should be disallowed on the basis of 11 U.S.C. § 502(e)(1)(B). Section 502(e)(1) of the Code provides as follows:
(e)(1) Notwithstanding subsections (a), (b), and (c) of this section and paragraph (2) of this subsection, the court shall disallow any claim for reimbursement or contribution of an entity that is liable with the debtor on or has secured the claim of a creditor, to the extent that
(A) such creditor's claim against the estate is disallowed;
(B) such claim for reimbursement or contribution is contingent as of the time of allowance or disallowance of such claim for reimbursement or contribution; or
(C) such entity asserts a right of subrogation to the rights of such creditor under section 509 of this title.
(2) A claim for reimbursement or contribution of such an entity that becomes fixed after the commencement of the case shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section, or disallowed under subsection (d) of this section, the same as if such claim had become fixed before the date of the filing of the petition.
The principal argument advanced by both the Bell claimants and the Celotex claimants is that § 502(e)(1)(B), being applicable *170 to only "an entity that is liable with the debtor" (emphasis added), does not apply to them, because they have not been determined to actually be liable with the debtor as of the date of the bankruptcy filing and, due to the automatic stay, as of the present. The Celotex claimants, in addition to presenting this argument in a somewhat more elaborate manner than the Bell claimants, also argue that decisions contrary to its position in other jurisdictions are entitled to reduced weight in light of the presence of the allegedly-relevant controlling decision of the Court of Appeals in In re M. Frenville Co., 744 F.2d 332, 336-37 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S. Ct. 911, 83 L. Ed. 2d 925 (1985), in this jurisdiction. In Frenville, the court, in a holding widely discredited elsewhere, see, e.g., Grady v. A.H. Robins Co., 839 F.2d 198, 201 (4th Cir.1988), concluded that a "claim" for contribution or indemnification did not arise until a right to payment against the claimant existed, and that, since such a right did not arise pre-petition under the facts before it, the automatic stay did not apply to suit brought by a putative indemnitee against the putative indemnitor-debtor.
We believe that the plausibility of the claimants' defense must be measured in light of the treatment which the Code gives to contingent claims generally. Pursuant to 11 U.S.C. § 502(c)(1), a contingent claimant is said to generally be entitled to file a claim, but the amount of the claim is subject to estimation by the bankruptcy court. See, e.g., Bittner v. Borne Chemical Co., 691 F.2d 134, 135-36 (3d Cir.1982); In re Andrews, 78 B.R. 420, 425 (Bankr.E.D.Pa. 1987); and In re Baldwin-United Corp., 55 B.R. 885, 896-902 (Bankr.S.D.Ohio 1985). We note that such claims are often fragile in the face of the estimation process and valued at zero. See Bittner, supra, 691 F.2d 136-39; and Baldwin-United, supra, 55 B.R. at 896-902.
The asbestosis victims who are plaintiffs in any lawsuits brought against the Debtors and, normally, the instant claimants as well, would be entitled to invoke the estimation process. However, the Code further references claims which are not only contingent but are also in the nature of claims for reimbursement or contribution. The Code sections which address such claims are 11 U.S.C. § 502(e)(1), which is reproduced at page 169 supra, and 11 U.S.C. § 509, which provides as follows:
§ 509. Claims of codebtors
(a) Except as provided in subsection (b) or (c) of this section, an entity that is liable with the debtor on, or that has secured, a claim of a creditor against the debtor, and that pays such claim, is subrogated to the rights of such creditor to the extent of such payment.
(b) Such entity is not subrogated to the rights of such creditor to the extent that
(1) a claim of such entity for reimbursement or contribution on account of such payment of such creditor's claim is
(A) allowed under section 502 of this title;
(B) disallowed other than under section 502(e) of this title; or
(C) subordinated under section 510 of this title; or
(2) as between the debtor and such entity, such entity received the consideration for the claim held by such creditor.
(c) The court shall subordinate to the claim of a creditor and for the benefit of such creditor an allowed claim, by way of subrogation under this section, or for reimbursement or contribution, of an entity that is liable with the debtor on, or that has secured, such creditor's claim, until such creditor's claim is paid in full, either through payments under this title or otherwise.
The operation of these two Code sections, in tandem, is clear. A claim for reimbursement or contribution "is entitled to no better status than the claim of a creditor assured by such surety." 124 CONG.REC. S17410-11 (daily ed. Oct. 6, 1978); 124 CONG.REC. H11094 (daily ed. Sept. 28, 1978), reproduced in 3 COLLIER ON BANKRUPTCY, ¶ 502.05, at 502-83 to 502-84 (15th ed. 1989). If the underlying *171 creditor's claim is disallowed, then the claim of the indemnitor or contributor in connection with such a claim must be disallowed. 11 U.S.C. § 502(e)(1)(A). The claim of the indemnitor or contributor is, however, subordinated to the claim of the underlying creditor. 11 U.S.C. § 509(c). If the indemnitor or contributor pays the underlying creditor's claim, it is then subrogated to the underlying creditor's rights against the debtor. 11 U.S.C. §§ 502(e)(1)(C), 509(a); In re Sensor Systems, Inc., 79 B.R. 623 (Bankr.E.D.Pa. 1987); 124 CONG.REC., supra, S17411, H11094; and 3 COLLIER, supra, ¶ 502.05, at 502-84. In the event that such subrogation results, the claim of the indemnitor or contributor is then determined in the same manner as that of the underlying creditor. 11 U.S.C. § 502(e)(2).
It is in this context that we must interpret 11 U.S.C. § 502(e)(1)(B). The only Code sections which address the rights of indemnitors, contributors, or parties jointly liable or potentially jointly liable with debtors to file claims are § 502(e) and § 509. 3 COLLIER, supra, ¶ 509.01, at 509-2; S.REP. NO. 989, 95th Cong., 2d Sess. 73 (1978); and H.REP. NO. 595, 95th Cong., 2d Sess. 358 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Given the obvious intention of the Code draftspersons to cover the entire field of treatment of claims of indemnitors and contributors in 11 U.S.C. §§ 502 and 509, it appears to us illogical to give § 502(e)(1)(B) a narrow reading, based on the tense of the verb used in § 502(e), i.e., "is," as opposed to "could be." We therefore consider the reading of § 502(e)(1)(B) suggested by the instant claimants most improbable. Congress clearly meant to include all situations wherein indemnitors or contributors could be liable with the debtor within the scope of § 502(e)(1)(B).
A contrary reading of § 502(e)(1)(B) in the manner urged by the instant claimants would be, as Judge Fox suggested in Pacor, supra, slip op. at 5, "counter-intuitive." One of the principles of § 502 is that certain contingent claims, contrary to the conclusion that such claims were not "provable" under the Bankruptcy Code, can be allowed, estimated, and the obligations of same discharged in a bankruptcy case. 3 COLLIER, supra, ¶ 502.03, at 502-71 to 502-75. However, some lines must be drawn as to whether certain types of claims are too contingent to ever be allowed. A debtor's estate may therefore "not be burdened by estimated claims" which are of such a degree as to be too contingent in nature. In re Charter Co., 862 F.2d 1500, 1502 (11th Cir.1989). Preventing the underlying contingent claimant and the indemnitor of or contributor to the underlying contingent claimant to both recover claims is one of the purposes, we believe, of § 502(e)(1)(B). There are several logical reasons, then, for the conclusion that § 502(e)(1)(B) cannot be read narrowly: (1) Duplicative claims covering the same liability could otherwise be allowed; (2) The claims of indemnitors or contributors are simply too contingent to be allowed; and (3) As observed in In re Charter Co., 81 B.R. 644, 648 (M.D.Fla.1987), aff'd, 862 F.2d 1500 (11th Cir.1989), a debtor's estate containing numerous contingent claims subject to indemnity or contribution would otherwise be impossible to administer because huge, indeterminate sums might have to be reserved to cover such claims if they would materialize in the future.
The invocation of the Frenville holding merely heightens the implausibility of the claimants' reading of § 502(e)(1)(B). Frenville limits the allowance of derivative claims. If the claimants are correct in their assertion that Frenville renders their claims unallowable because of their high degree of contingency, then their claims could not be allowed and the Debtor's objections would prevail for this reason. Moreover, as the Debtor observes, the court, in Frenville, 744 F.2d at 337 n. 8, allowed that "overriding federal law" may prevail in a case involving, like the instant one, asbestosis claims. We are therefore inclined to apply § 502(e)(1)(B) and not the holding of Frenville in deciding the instant contested matters. However, we point out that the holding of Frenville would support disallowance, not allowance, of the *172 instant claims.[1]
The argument of the instant claimants ultimately boils down to a contention that, irrespective of what Congress meant in enacting § 502(e)(1)(B), its use of the word "is" requires us to conclude that their joint liability with the Debtor must be judicially established to trigger the applicability of § 502(e)(1)(B). This argument is reminiscent to that of the plan proponent in In re 222 Liberty Associates, 108 B.R. 971, 979 (Bankr.E.D.Pa.1990), who insisted that, applying the reasoning of United States v. Ron Pair Enterprises, Inc., ___ U.S. ___, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989) (which the instant claimants do not cite), the language of a Code section is so apparent in its meaning that it is error to even examine the context of that language, and the Code section must be applied literally irrespective of the logical nonsense of such an interpretation. As in that case, id., 108 B.R. at 978-80 we refuse to so read Ron Pair and we decline to interpret the instant Code section, § 502(e)(1)(B), in a manner which renders it nonsensical just because it could have been written more clearly.
We note that the claimants are unable to cite any cases that support their reading of § 502(e)(1)(B), and are confronted with numerous authorities to the contrary. Unabashed, they resort to criticizing the alleged "analytical infirmities" of the numerous cases which opt for a broader reading of § 502(e)(1)(B) than they wish to give it. See Charter, supra, 862 F.2d at 1502-04; Pacor, supra, slip op. at 4-7 (Judge Fox's analysis is characterized by the Celotex claimants as not only "flawed" but "inexorably absurd"); In re Wedtech Corp., 87 B.R. 279, 283-89 (Bankr.S.D.N.Y.1988) (per BROTZMAN, J.); In re Wedtech Corp., 85 B.R. 285, 289-93 (Bankr.S.D.N.Y.1988) (per BUSCHMAN, J.); In re Provincetown-Boston Airlines, Inc., 72 B.R. 307, 309-10 (Bankr.M.D.Fla.1987); In re Johns-Manville Corp., 57 B.R. 680, 692 n. 6 (Bankr.S. D.N.Y.1986) (per LIFLAND, J.); and Baldwin-United, supra, 55 B.R. at 894-95.
As Judge Fox suggests in Pacor, supra, slip op. at 5-6, of particular interest is the decision in In re Early & Daniel Industries, Inc., 104 B.R. 963, 965-68 (Bankr.S. D.Ind.1989), wherein the court rejected the converse of the argument made here: that § 502(e)(1)(B) should not apply to a situation in which joint liability was established pre-petition and hence was not contingent, but the amount of the underlying claim was not established, and hence the claim was merely unliquidated. The position of the Early & Daniel claimants had, in our view, more of a logical basis than the argument advanced by the claimants here. The guarantor's claim there was arguably less contingent than the scope of § 502(e)(1)(B) contemplated not, as here, more contingent. Nevertheless, the Early & Daniel court, 104 B.R. at 964-67, read § 502(e)(1)(B) broadly and disallowed the claim on the basis of that Code section. In the alternative, the court stated that, if it were not obliged to disallow the claim under § 502(e)(1)(B), it would nevertheless have estimated its value at zero because of the requirement of 11 U.S.C. § 509(c) that it subordinate the claim. Id. at 968. Cf. Baldwin-United, supra, 55 B.R. at 896-911 (court estimates contingent contribution claims at zero as an alternative to disallowing them under § 502(e)(1)(B)). If we were compelled to estimate the instant claims, their extremely contingent character would probably relegate them to the same fate.[2]
As in 222 Liberty, supra, 108 B.R. at 980, we are inclined to characterize the Celotex claimants' verbal abuse of consistent reasoning of courts contrary to that urged by the claimants as "contrived outrage." We believe that, when viewed in its proper context in the Code, § 502(e)(1)(B) must be read as Judge Fox and all other known authorities have read it: as requiring *173 disallowance of any claim based upon the right of indemnity or contribution as to a contingent claim, whether the joint liability of the debtor and the putative claimant has been judicially determined pre-petition or not.
We shall therefore enter an Order disallowing the claims in issue.
NOTES
[1] This may have been the reasoning of the Debtor in alternatively contending that it was not indebted to the claimants.
[2] In fact, it might be argued that § 502(e)(1)(B) is merely a shorthand way of providing that certain claims are so contingent that, if estimated, their value would have to be pegged at zero in any event. Therefore, the estimation process is eliminated as superfluous and such claims are simply disallowed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/6495549/ | 06/27/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 24, 2022
GINA G. GIANOPULOS CRUZ, ET AL v. WILHOIT PROPERTIES, ET
AL
Appeal from the Circuit Court for Coffee County
No. 2019-CV-45919 Vanessa Jackson, Judge
___________________________________
No. M2022-00687-COA-R3-CV
___________________________________
This is an appeal from a Final Order of Dismissal and Order Approving Minor’s
Settlement. Because the appellant did not file her notice of appeal within thirty days after
entry of the final order as required by Rule 4(a) of the Tennessee Rules of Appellate
Procedure, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
FRANK G. CLEMENT, JR., P.J., M.S., ANDY D. BENNETT, and W. NEAL MCBRAYER, JJ.
Gina Gianopulos Cruz, Nashville, Tennessee, pro se.
William E. Godbold, III, Chattanooga, Tennessee, for the appellees, Wilhoit Properties,
Inc., and Briarwood Apartment Homes.
James Frederick Conley, Tullahoma, Tennessee, Guardian Ad Litem.
MEMORANDUM OPINION1
This is a premises liability case involving a minor child who fell on a staircase. The
defendants and the child’s guardian ad litem moved the trial court to approve a settlement
1
Tenn. R. Ct. App. 10 states:
This court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
agreement. The child’s mother, Gina Gianopulos Cruz, opposed the settlement. On
November 8, 2021, the trial court entered a Final Order of Dismissal and Order Approving
Minor’s Settlement. Ms. Cruz filed a notice of appeal with the clerk of this Court on May
23, 2022.
Tennessee Rule of Appellate Procedure 4(a) requires that a notice of appeal be filed
with the clerk of the appellate court within thirty days after entry of the judgment
appealed. Ms. Cruz did not file her notice of appeal until more than six months after entry
of the judgment appealed. Ms. Cruz attached a letter to her May 23, 2022 notice of appeal
stating that she sent a notice of appeal to the clerk in December of 2021, and that she
believes she sent it on December 7, 2021. However, Ms. Cruz was unable to provide the
clerk with any proof of her attempted filing. In any event, with certain exceptions not
relevant here, a filing is not considered timely unless it is received by the clerk within the
time fixed for filing. Tenn. R. App. P. 20(a). The clerk did not receive a notice of appeal
from Ms. Cruz within the time fixed for filing.
On June 13, 2022, the defendants filed a motion to dismiss the appeal for failure to
file a timely notice of appeal. Ms. Cruz has not filed a timely response. The thirty day time
limit for filing a notice of appeal is mandatory and jurisdictional. Albert v. Frye, 145
S.W.3d 526, 528 (Tenn.2004); Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn.
2003). This Court can neither waive nor extend the time period. Tenn. R. App. P. 2 and
21(b); Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 869 (Tenn. Ct. App.
2008); Jefferson v. Pneumo Serv. Corp. 699 S.W.2d 181, 184 (Tenn. Ct. App. 1985). The
failure to file a timely notice of appeal deprives this Court of jurisdiction to hear the
matter. Flautt & Mann v. Council of City of Memphis, 285 S.W.3d at 869.
The appeal is dismissed for failure to file a timely notice of appeal. The case is
remanded to the trial court for further proceedings consistent with this opinion. Gina
Gianopulos Cruz is taxed with the costs for which execution may issue.
PER CURIAM
-2- | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6495514/ | Filed 6/27/22 P. v. McNamara CA1/1
Reposting correct version
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Appellant,
A162828
v.
KYLE MATHEW MCNAMARA, (Mendocino County Super. Ct.
No. SCUK-CRCR-2020-36934-
Defendant and Respondent.
001)
The People appeal from a trial court order denying their motion to
reinstate a charge of perjury against defendant Kyle Mathew McNamara.
We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On November 6, 2020, McNamara was arrested for driving under the
influence (DUI). The arresting officer drove McNamara to a friend’s house
and issued a citation.1 McNamara signed the citation, thereby agreeing,
“without admitting guilt,” to appear at an arraignment on December 8, 2020.
(Boldface and capitalization omitted.)
McNamara was cited under Vehicle Code section 23152,
1
subdivisions (a) and (b). All subsequent citations are to the Penal Code
unless otherwise indicated.
1
Ten days after his arrest, but before the DUI arraignment, McNamara
sought to terminate his probation in two separate misdemeanor cases. In an
accompanying handwritten declaration, which he signed under penalty of
perjury, McNamara stated he had “had no trouble with the law in the last
2 years 9 months or problems with probation.”
After McNamara was arraigned on the DUI charges, the Mendocino
County District Attorney charged him with perjury, a felony, based on the
theory that the declaration’s statement that he had “had no trouble with the
law” in almost three years was false.2 A preliminary hearing on the perjury
charge was held in May 2021. The officer who arrested McNamara for the
DUI testified, and a copy of the citation was introduced into evidence. The
officer testified that, while he could not recall the exact language he used, he
advised McNamara that signing the citation “was not an admission of guilt”
and “he ha[d] not been charged at that time.” In response to a defense
question whether the officer told McNamara that “he was not in any trouble,”
the officer answered: “Verbatim, I do not remember.” The magistrate also
took judicial notice of the files in the two cases in which McNamara had
sought to terminate his probation.3
At the conclusion of the preliminary hearing, the magistrate dismissed
the perjury charge. After observing that one of perjury’s elements is that “the
defendant willfully stated that information was true, even though he knew it
was false,” the magistrate continued, “Now, in interpreting that, the Court is
going to make the following factual finding. It doesn’t appear to me that
2 The perjury charge was brought under section 118, subdivision (a).
3 The files in the two misdemeanor cases are not part of the record
before us. The record does not reveal if McNamara’s request to terminate
probation was contested, but the People represented below that it was
granted on November 23, 2020.
2
[McNamara] knew the information in his declaration was false. [¶] He was
given a—he signed a citation indicating that he is not admitting guilt, and
that he is just simply agreeing to appear in court. [¶] He’s presumed
innocent, so it’s a reasonable interpretation of his statement to believe that
he’s not in trouble with the law. [¶] He hasn’t been convicted.” The
magistrate opined that “this is a hyper-technical prosecution for perjury” and
dismissed the charge based on the lack of evidence that McNamara knew the
statement was false.
The People then filed a motion in the trial court to reinstate the charge.
The motion was denied, and this appeal followed.
II.
DISCUSSION
A. General Legal Standards
Preliminary hearings are presided over by magistrates.4 (See Cal.
Const., art. I, § 14; § 739.) “A magistrate’s function at a felony preliminary
hearing is to determine whether there is ‘sufficient cause’ to believe [the]
defendant guilty of the charged offense. (§§ 871, 872, subd. (a).) ‘Sufficient
cause’ means ‘ “reasonable and probable cause” ’ or ‘a state of facts as would
lead a [person] of ordinary caution or prudence to believe and conscientiously
entertain a strong suspicion of the guilt of the accused.’ ” (People v.
Abelino (2021) 62 Cal.App.5th 563, 573 (Abelino).)
“ ‘Within the framework of [the magistrate’s] limited role, . . . the
magistrate may weigh the evidence, resolve conflicts, and give or withhold
4 Magistrates have limited powers conferred mostly by statute. “ ‘[A]
superior [court] judge, when sitting as a magistrate, possesses no other or
greater powers than are possessed by any other officer exercising the
functions of a magistrate.’ ” (People v. Richardson (2007) 156 Cal.App.4th
574, 584.)
3
credence to particular witnesses.’ ” (People v. Slaughter (1984) 35 Cal.3d 629,
637.) But “the magistrate is not a trier of fact. [The magistrate] does not
decide whether [the] defendant committed the crime, but only whether there
is ‘ “some rational ground for assuming the possibility that an offense has
been committed and the accused is guilty of it.” ’ [Citation.] If the record
shows strong and credible evidence of [the] defendant’s guilt, the magistrate
may reasonably assume the possibility of [the defendant’s] guilt. Thus in
many cases [the magistrate] will not find it necessary to resolve all conflicts
in the evidence, in order to find probable cause to hold the defendant for trial.
The magistrate’s power to decide factual disputes exists to assist . . . [the]
determination of sufficient cause [citation]; if [the magistrate] can determine
that issue without resolving factual conflicts, [the magistrate] may do so.”
(Id. at pp. 637–638.)
When a magistrate dismisses a charge after the preliminary hearing,
the prosecution may file a motion before the trial court to reinstate it.
(§ 871.5, subd. (a).) If the motion is denied, the People may appeal the ruling.
(§ 871.5, subd. (f).) On appeal, we disregard the trial court’s ruling and
review the magistrate’s ruling. (Abelino, supra, 62 Cal.App.5th at p. 574.)
The standard we use to review the magistrate’s ruling depends on
whether the ruling turned on a factual or legal determination. “In the
context of dismissal of charges at a preliminary hearing, a court makes a
factual finding when, after resolving evidentiary disputes and/or assessing
witnesses’ credibility, it determines there is no evidentiary support for one or
more elements of a charge. Conversely, a court makes a legal conclusion
when it accepts the prosecution’s evidence, but determines there is
insufficient evidentiary support for one or more elements of a charge.”
(People v. Rowe (2014) 225 Cal.App.4th 310, 318 (Rowe), italics added.) We
4
review factual findings for substantial evidence and legal conclusions de
novo. (People v. Slaughter, supra, 35 Cal.3d at p. 638.)
B. The Magistrate Properly Dismissed the Perjury Charge Because
Probable Cause Was Not Shown as a Matter of Law.
In relevant part, section 118 provides that “[e]very person who . . .
declares . . . under penalty of perjury . . . and willfully states as true any
material matter which [the person] knows to be false . . . is guilty of perjury.”
(§ 118, subd. (a).) A false statement is “material” in the context of a judicial
proceeding if it could have influenced the outcome. (People v. Hedgecock
(1990) 51 Cal.3d 395, 404–405.) The crime requires proof that the defendant
knew the statement was false and had “the specific intent to declare falsely
under oath or penalty of perjury.” (People v. Viniegra (1982) 130 Cal.App.3d
577, 584, italics omitted; People v. Hagen (1998) 19 Cal.4th 652, 663; see
CALCRIM No. 2640.)
As we have said, in dismissing the perjury charge the magistrate stated
it made “the following factual finding. It doesn’t appear to me that
[McNamara] knew the information in his declaration was false. [¶] He . . .
signed a citation indicating that he is not admitting guilt, and that he is just
simply agreeing to appear in court.”
The People argue that the magistrate’s determination amounted to a
legal conclusion that must be reversed. In the alternative, they argue that,
even if the determination is construed as a factual finding, it must be rejected
because it was unsupported by substantial evidence. McNamara responds
that the determination was factual and, regardless, must be upheld under
any standard of review. We agree with the People that the magistrate’s
determination was tantamount to a legal conclusion. But we agree with
McNamara that in light of the uncontroverted evidence, the People failed as a
matter of law to establish probable cause for the perjury charge.
5
“[D]etermining whether the magistrate made a prohibitive factual
finding is not always clear cut.” (Abelino, supra, 62 Cal.App.5th at p. 575; see
People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 497
[distinction does not depend on “ ‘ “magic words” ’ ”]; People v. Superior Court
(Day) (1985) 174 Cal.App.3d 1008, 1015 [distinction “is clear enough in the
abstract, but has posed some difficulty in its practical implementation”].) But
as we have said, a magistrate makes a factual finding when it determines
there is no evidentiary support for one or more elements of a charge after
resolving evidentiary disputes or assessing witnesses’ credibility. (Rowe,
supra, 225 Cal.App.4th at p. 318.) The magistrate here neither resolved
evidentiary disputes nor assessed the credibility of witnesses.
The evidence presented to the magistrate was not disputed. It was
uncontested that McNamara stated in his declaration that he had “had no
trouble with the law” for the past few years. And it was undisputed that at
the time of the statement he had been cited for, but not charged with or
convicted of, DUI. It was in this context that the magistrate determined that
“a reasonable interpretation of [McNamara’s] statement” was that
McNamara “believe[d] that he[ was] not in trouble with the law.” Although
the magistrate couched the comment in factual terms—i.e., a statement
about what McNamara believed—the magistrate’s ultimate determination is
more properly characterized as a legal conclusion, because it accepted all of
the prosecutor’s evidence and deemed it insufficient to support the charge.
(See Rowe, supra, 225 Cal.App.4th at p. 318; see also People v. Superior Court
(Valenzuela), supra, 73 Cal.App.5th at pp. 496–497.)
We agree with the magistrate that the evidence was insufficient as a
matter of law to establish probable cause to believe that McNamara willfully
made a statement he knew was false. The statement, given its undisputed
6
context, was both vague (in the sense that people of ordinary intelligence
have to guess at its meaning) and ambiguous (in the sense that the phrase
could have multiple meanings). (See, e.g., People v. French (1933)
134 Cal.App. 694, 699–700 [defendant’s statement that he was “ ‘in need of
assistance’ ” could not constitute perjury because it was not a clear
“statement of fact”].) To some people, “trouble” as used in McNamara’s
statement might mean any contact with the police, regardless of whether the
contact resulted in an arrest, citation, charge, or conviction. To others, it
might mean any contact with the police that resulted in criminal charges
being filed. And to still others, it might mean interactions with the police
that resulted in a conviction and sentence. No person of ordinary caution or
prudence could reasonably infer that a person who was issued a citation, told
he was not admitting guilt, was not charged, and was presumed innocent,
willfully lied by thereafter claiming not to have been in trouble with the law.
We might have reached a different decision had McNamara stated in
his declaration that he had not been cited by the police, had not been stopped
by the police, or had not had any contact, encounter, or interaction with the
police. And we might have reached a different decision if at the time of the
statement McNamara had already been charged with, or convicted of, the
DUI or another crime. (See, e.g., People v. Paden (1925) 71 Cal.App. 247,
249–250 [perjury conviction upheld where defendant falsely testified he had
never been convicted of a felony].) In other words, we do not conclude that
the statement that one has “had no trouble with the law” can never support a
perjury charge. Here, however, McNamara’s statement, in the
uncontroverted context in which it was made, would not lead a person of
ordinary caution or prudence to reasonably believe and conscientiously
7
entertain a strong suspicion that he was guilty of perjury.5 (See Abelino,
supra, 62 Cal.App.5th at p. 573.)
III.
DISPOSITION
The order denying the People’s motion to reinstate the perjury charge
is affirmed.
5 In light of our holding, we need not address McNamara’s argument
that the magistrate’s determination was correct as a matter of law because
his statement was “fundamentally ambiguous” under federal standards. (See
United States v. Camper (9th Cir. 2004) 384 F.3d 1073, 1076; United States v.
Culliton (9th Cir. 2003) 328 F.3d 1074, 1078.)
8
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Wiss, J. *
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
People v. McNamara A162828
9 | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903530/ | Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about March 28, 2012, which, insofar as appealed from, denied plaintiff Philip Wollruch’s (plaintiff) motion for summary judgment and granted defendant Robert Jaekel’s cross motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.
Dismissal of the complaint as against defendant Jaekel was appropriate in this action where plaintiff was injured while participating in a sponsored in-line skating event, when Jaekel lost his balance and collided with him, after another participant veered into Jaekel’s path. Although Vehicle and Traffic Law § 1231 makes the provisions of that statute applicable to in-line skaters on a roadway, plaintiff failed to raise a triable issue regarding whether Jaekel violated an applicable provision of the Vehicle and Traffic Law.
Moreover, plaintiff, a participant in a sponsored sporting event, assumed the risk of injury from a fall or collision with another skater, since falling is an inherent part of the sport (see e.g. Anand v Kapoor, 15 NY3d 946, 947-948 [2010]; compare Custodi v Town of Amherst, 20 NY3d 83 [2012]). Indeed, plaintiff testified that falling was “[j]ust part of skating,” and he failed to present evidence that Jaekel’s conduct was reckless or intentional. Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Román, JJ. [Prior Case History: 2012 NY Slip Op 30773(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903531/ | Yesawich, Jr., J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which excluded certain payments in calculating petitioner’s final average salary upon retirement.
On January 22/ 1985, after 20 years of municipal police service, petitioner retired and thereupon became eligible to receive a pension based on his "final average salary” earned in the 12 months immediately preceding his retirement (see, Retirement and Social Security Law § 302 [9] [d]). In computing his final average salary, the State Policemen’s and Firemen’s Retirement System did not include a lump-sum payment of $2,558.43 received by petitioner on March 2, 1984 as a credit for vacation he did not take in 1984, a similar payment of $2,558.43 received January 4, 1985 for vacation he would not be taking in 1985 because of his retirement, and also $775 paid as a clothing allowance on January 18, 1985. Following a formal hearing, had pursuant to the Retirement and Social Security Law, at which petitioner unsuccessfully challenged respondent’s exclusion of these payments in calculating his final average salary, petitioner initiated this CPLR article 78 proceeding seeking a judgment directing respondent to include these three payments in his final average salary and to redetermine and recalculate his monthly retirement allowance accordingly.
Although this matter was improperly transferred to this court, for it involves a statutory interpretation rather than any factual analysis, we retain it pursuant to CPLR 7804 (g) (see, Matter of Consumer Protection Bd. v Public Serv. Commn., 85 AD2d 321, 323, appeal dismissed 57 NY2d 673).
Retirement and Social Security Law § 302 (9) (d) states, in relevant part: " 'Final Average Salary’ shall mean the regular compensation earned from such participating employer by a member during the twelve months of actual service immediately preceding the date of such employee’s retirement, exclusive of any lump sum payments for sick leave, or accumulated vacation credit, or any form of termination pay”. Respondent is responsible for the construction of this statute and, absent a showing that his interpretation is irrational or unreasonable, it is to be upheld (see, Matter of Spitz v Regan, 98 AD2d 920). Construing "regular compensation earned * * * during * * * actual service” to mean fixed regular wages, as respondent has, is consistent with both the plain meaning of "salary” (see, *814Matter of Bateman v Mayor, 247 NY 250, 259) and a legislative intention to guard against Retirement System members manipulating their pay to inflate their final average salaries (see, Retirement and Social Security Law § 431).
That lump-sum vacation payments are not regular compensation is clear from the fact that had petitioner taken his vacation he would have received his regular wages during that period. Having elected to forego his vacation and to work instead, the $2,558.43 payment, the cash equivalent he received in lieu of his 1984 vacation, was in addition to his regular compensation and thus extraordinary (see, Matter of Cannavo v Regan, 122 AD2d 523, 524, lv denied 68 NY2d 612; Matter of Martone v New York State Teachers’ Retirement Sys., 105 AD2d 511, 512). Being such, this payment was properly excluded in arriving at the amount of petitioner’s final average salary.
Petitioner’s reliance on Kranker v Levitt (30 NY2d 574) as an analogue for the proposition that respondent was obliged to treat petitioner’s vacation payments, both received within 12 months preceding his retirement, as regular compensation is misplaced. Kranker dealt with the inclusion of vacation credits that vested because of a 1957 regulation and its subsequent administrative construction and implementation for an extended period of time (see, Matter of Weber v Levitt, 34 NY2d 797, 800, cert denied sub nom. Lecci v Levitt, 419 US 997). No such regulation or administrative practice is involved here.
As for petitioner’s suggestion that the "accumulated vacation credit” intended to be excluded consists of vacation credits amassed in prior years and not credit accruing within 12 months of retirement, nothing in the legislative history or case law has been brought to our attention to justify making any such distinction. More importantly, respondent’s construction which, simply put, is that vacation accumulates when a member becomes entitled to vacation credit and this is so whether that transpires in prior years or in the current year of retirement, is neither unreasonable nor irrational. Notably, this construction avoids bestowing unintended benefits on Retirement System members and comports with an obvious legislative desire to protect Retirement System funds (Matter of Simonds v New York State Teachers’ Retirement Sys., 42 AD2d 470, 472).
The clothing allowance is even further from the definition of regular compensation. According to testimony from the Assistant Director of Retirement Benefits for the Retirement *815System, an administrative decision was made several years ago that clothing allowances are not considered salary. There is no showing that this interpretation is irrational or unreasonable, nor of any administrative practice giving rise to a vested or contractual right to have these funds treated as salary (see, Matter of Bookhout v Levitt, 43 NY2d 612, 617).
Determination confirmed, and petition dismissed, without costs. Kane, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903533/ | Casey, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 27, 1987.
Claimant contends that the appeal by the Commissioner of Labor to the Unemployment Insurance Appeal Board, following the decision of the Administrative Law Judge in claimant’s favor, was untimely. The record, however, contains a notice of appeal from the Commissioner indicating a filing date of January 15, 1987, well within the time period prescribed by Labor Law § 621 (1). On the merits, claimant objects to the Board’s finding that she voluntarily left her employment without good cause. Since general dissatisfaction with job conditions is not a valid excuse to terminate employment and receive benefits (Matter of Reich [Philip Morris, Inc. —Ross], 79 AD2d 841, 842), the Board’s decision must be affirmed. At best, claimant’s arguments establish the existence of substantial evidence which could have supported a Board decision in her favor (see, Matter of Wacksman [County of Nassau—Roberts] 129 AD2d 848), but this provides no basis for disturbing a Board decision to the contrary which is also supported by substantial evidence (see, Matter of Gunnip [Murphy Co.—Roberts] 108 AD2d 1007).
*818Decision affirmed, without costs. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/197599/ | United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 97-1340
NASCO, INC.,
Plaintiff, Appellant,
v.
PUBLIC STORAGE, INC.,
Defendant, Appellee.
No. 97-1457
PUBLIC STORAGE, INC.,
Defendant, Cross-Appellant,
v.
NASCO, INC.,
Plaintiff, Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Chief Judge,
Lynch, Circuit Judge,
and Keeton,* District Judge.
Joseph G. Abromovitz, with whom John G. Balzer and
* Of the District of Massachusetts, sitting by designation.
Abromovitz & Leahy, P.C., were on brief, for plaintiff-
appellant NASCO, Inc.
James E. Carroll, with whom Kristen M. Lacovara and
Cetrulo & Capone were on brief, for defendant-appellee Public
Storage, Inc.
October 8, 1997
-2-
2
LYNCH, Circuit Judge. One novel issue under Mass.
LYNCH, Circuit Judge.
Gen. Laws ch. 93A is presented by this appeal: May a chapter
93A 11 claimant be awarded attorney's fees where the only
"adverse effects" it suffers from the violation are the
incurring of valid bills which it does not pay because it is
unable to do so? We answer this question in the affirmative
in light of Massachusetts precedent and the policy behind the
attorney's fees provisions of chapter 93A.
NASCO, Inc., a family business in financial
trouble, attempted to sell its principal asset, an old brick
warehouse in Chelsea, Massachusetts. Lengthy negotiations
with Public Storage Inc. ("PSI"), a California-based company,
produced a purchase and sale agreement in February of 1990
which NASCO thought constituted an effective contract for the
sale of the building, but which a jury did not. Both the
trial judge and the jury (in an advisory capacity) thought
that PSI nonetheless had engaged in unfair and deceptive
business practices in the course of its dealings, although
the judge found so for only a limited period of time.
PSI escaped an award of significant damages against
it when the judge found that, while NASCO had suffered harm
during this limited period, NASCO had not shown monetary
damages. The judge did award NASCO attorney's fees and costs
on that basis. But the award was only a fraction of what
NASCO had sought, because NASCO had failed to document the
-3-
3
fees for its successful claim under chapter 93A separately
from the fees for its unsuccessful contract claim. Conceding
the jury verdict on the contract claim, NASCO appeals, saying
that the evidence showed that PSI violated chapter 93A for a
longer period, that NASCO suffered damages of at least
$700,000, and that it should have received more in attorney's
fees. PSI also appeals, arguing that the evidence does not
show any violation of chapter 93A at all. We affirm.
I.
NASCO, Inc. manufactured bedding products at a
factory located in a large brick building in Chelsea.
NASCO's financial difficulties convinced the owners by early
1987 to wind down the business by selling off the assets,
paying creditors, and distributing the remainder to the
shareholders. NASCO's principal asset was the Chelsea
property, which an appraiser then valued at $4 million. The
property was subject to a $40,000 first mortgage held by the
Small Business Administration and to an $800,000 second
mortgage held by Shawmut Bank.
NASCO's property interested Public Storage, Inc., a
corporation that operates self-storage facilities throughout
the United States. In February 1987, NASCO and PSI executed
a purchase and sale agreement for the property, reciting a
price of $3.6 million. The parties terminated that agreement
by mutual consent after learning that Chelsea's zoning laws
-4-
4
did not permit the use of the property as a mini-warehouse.
PSI remained interested in the project, and pursued relief
from the zoning restriction at its own expense, both in
administrative appeals and ultimately in the courts.
During this time, NASCO actively sought other
buyers for the property while continuing negotiations with
PSI. In September 1988, Cambridge Investment Group offered
$4 million. In February 1989, Rauseo & Co. offered $3.4
million. PSI was kept informed of the offers. PSI continued
to express its interest in the property, contingent on a
favorable outcome of its zoning litigation, and offered to
increase its offering price to $3.8 million. Neither of the
other offers resulted in a sale.
Throughout this period, NASCO had difficulty making
its payments on the Shawmut loan. By the summer of 1989,
shareholders had loaned the corporation a total of $268,000
in personal funds and could no longer afford to keep current
on the loan payments. Anticipating a favorable outcome in
the pending land court litigation, PSI representatives
persuaded Shawmut not to foreclose on the property.
In November 1989, the land court ruled in favor of
PSI on the zoning issue. NASCO and PSI began exchanging
drafts of a second purchase and sale agreement (the "1990
P&S"). On January 31, 1990, all necessary PSI
representatives signed the new agreement; on February 2,
-5-
5
1990, NASCO representatives counter-signed. The agreement
contained an "expiration clause" which PSI had demanded and
which the parties had negotiated. The clause provided:
11. Expiration. This Agreement shall be of no
force or effect unless, within seven (7) days
after the date this Agreement has been
executed by Seller and Buyer's Real Estate
Representative, an Officer, the Secretary or
Assistant Secretary of Buyer, executes this
Agreement on behalf of Buyer and delivers to
Seller an executed copy of this Agreement
signed on behalf of Buyer by both its Real
Estate Representative and either the Secretary
or an Assistant Secretary of Buyer, together
with the Deposit.
Both PSI's local real estate representative and its secretary
had signed the 1990 P&S on January 31, but PSI never paid the
required deposit.
Between early February 1990 and March 19, 1990,
NASCO inquired about the deposit several times, both orally
and by letter. PSI did not respond by stating that the 1990
P&S had expired because the deposit had not been paid, but
instead claimed that the funds were tied up in its own
internal bureaucracy. The trial judge found that in other
respects PSI continued to act as though it still intended to
purchase the property under the agreement. Specifically, PSI
employees requested access to the facility and asked NASCO to
restore electrical power. However, in the meantime PSI
continued refining its own economic forecasts of the
viability of the Chelsea property as a self-storage
warehouse. PSI's statistical analysis indicated that the
-6-
6
project would only be viable at a price between $1 million
and $2 million lower than the 1990 P&S provided. PSI decided
to abandon the project. On March 19, 1990, PSI informed
NASCO, by letter, that PSI had "decided to terminate" the
1990 P&S. The letter did not refer to the expiration clause.
NASCO informed its bank that the deal with PSI had
evaporated, and within two months the property was sold at a
foreclosure sale for $852,000.
II.
NASCO sued PSI for breach of contract and violation
of chapter 93A. The district court initially granted PSI's
summary judgment motion on both counts, reasoning that the
expiration clause was unambiguous, requiring the payment of
the deposit to bind PSI, and that NASCO could not establish a
violation of chapter 93A in the absence of an enforceable
agreement. This Court reversed, finding the expiration
clause ambiguous, and remanded for trial. See NASCO, Inc. v.
Public Storage, Inc. (NASCO I), 29 F.3d 28 (1st Cir. 1994).
The case was tried before a different judge. NASCO
amended its complaint to add claims for breach of the implied
covenant of good faith and fair dealing and for estoppel.
Before trial, PSI changed its legal theory, admitting the
existence of a contract prior to the expiration of the seven-
day period, and the parties dismissed the estoppel claim.
Following a fourteen-day trial, a jury ruled for the
-7-
7
defendant on the contract claim and on the implied covenant
of good faith claim. Serving as an advisory jury only, the
jury answered interrogatories finding in favor of NASCO on
the chapter 93A claim, and recommended damages of $700,000.
Judge Lindsay, not accepting the advisory jury's findings,
ruled that there was no violation of chapter 93A prior to the
execution of the 1990 P&S on February 2 because the parties
did not consider the sale to be a "firm deal" until that
document was signed.
The district court did find that PSI had violated
chapter 93A through its deceptive conduct following the
expiration of the 1990 P&S in an attempt to keep its options
open, but ruled originally that NASCO had not been damaged
thereby. The district court amended its judgment to reflect
"adverse effects" from PSI's deceptive conduct.
Specifically, it found that PSI's conduct led NASCO to incur
additional legal expenses and the expense of restoring
electricity to the facility following the expiration of the
contract. The district court ruled that NASCO had not proven
the amount of these damages and so could not recover them,
but that the existence of these "adverse effects" entitled
NASCO to an award of attorney's fees for the chapter 93A
claim only. The district court awarded $35,000 in attorney's
fees and $4,097 in costs, one-fifth of what NASCO requested,
after discounting the portion of plaintiff's fee request that
-8-
8
it considered related to the unsuccessful contract claim.
III.
Both sides appeal. NASCO does not challenge the
jury's finding on the contract and implied covenant of good
faith claims, but rather appeals the judge's finding that
PSI's conduct prior to February 2, 1990 did not violate
chapter 93A. NASCO argues that the judge's finding goes
against the weight of the evidence and disregards the
advisory jury's findings. NASCO also claims the amount of
the attorney's fees awarded was "arbitrary and capricious."
PSI challenges the judge's finding of a chapter 93A
violation, claiming it is against the weight of the evidence,
and challenges the judge's finding of "adverse effects"
supporting the attorney's fee award. PSI does not challenge
the amount of attorney's fees awarded.
IV.
The Chapter 93A Violation
When this case was previously before this court, we
reversed summary judgment for defendant on both the contract
and the chapter 93A claim. As to the chapter 93A claim, we
noted that the evidence could be read to infer that PSI:
(1) signed the Agreement in order to
obligate NASCO to deliver the property to
it for $3,575,000.00, if PSI so chose;
(2) intentionally breached its obligation
to pay the $20,000.00 deposit, knowing
full well that NASCO was in no position
to repudiate the Agreement on the basis
-9-
9
of PSI's non-payment of the deposit;
(3) used the period of time after the
signing of the Agreement to investigate
the property further and to determine
whether it should honor the Agreement;
and
(4) then used its wrongful non-payment of
the deposit in order to avoid its
obligations under the Agreement.
NASCO I, 29 F.3d at 34 (footnote omitted). That evidence and
more was introduced at trial.
We review basic chapter 93A law. A party is not
exonerated from chapter 93A liability because there has been
no breach of contract. The law of Massachusetts has been
clear on this point since at least the decision of the
Supreme Judicial Court in Jet Line Services, Inc. v. American
Employers Ins. Co., 537 N.E.2d 107 (Mass. 1989). The court
in Jet Line held that there was no coverage under the
contract of insurance between plaintiff and defendant.
Nonetheless, the conduct of the insurance company in leading
the insured to believe there was coverage constituted an
unfair and deceptive trade practice. Accord Massachusetts
Farm Bureau Federation, Inc. v. Blue Cross of Massachusetts,
Inc., 532 N.E.2d 660, 664 (Mass. 1989)(violation of chapter
93A 11 need not be premised on a violation of an
independent common law or statutory duty). The fact that the
jury found no breach of contract does not preclude NASCO's
chapter 93A claim.
While the rubric of "rascality" as the test of
-10-
10
whether something is "unfair or deceptive" has been oft-
recited, both the Supreme Judicial Court and this court have
noted that such rhetoric is "uninstructive." See Cambridge
Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 768 (1st Cir.
1996); Massachusetts Employees Ins. Exch. v. Propac-Mass,
Inc., 648 N.E.2d 435, 438 (Mass. 1995). We apply the
standards of Propac and Jet Line and easily hold that the
evidence was not so overwhelming as to require the trial
court to find that PSI acted in an unfair or deceptive manner
before February 2, 1990.
The evidence adequately supports the trial judge's
conclusion that before February 2, 1990 NASCO was aware that,
in the absence of a signed P&S with PSI, it could not be
assured of a sale of the Chelsea property. Thus, under
Pappas Indus. Parks, Inc. v. Psarros, 511 N.E.2d 621, 623
(Mass. App. Ct. 1987), the judge could readily conclude that
it was not reasonable for NASCO to rely on PSI's
representations before February 2. While the judge could
have reached the opposite conclusion, as did the advisory
jury, he was not required to do so.1
PSI in turn argues that there was no violation of
chapter 93A after February 2, 1990. In Propac, 648 N.E.2d at
438, the Supreme Judicial Court directed that the focus be on
1. The advisory jury's opinion does not bind the court. See
Wyler v. Bonnell Motors, Inc., 624 N.E.2d 116, 118-19 (Mass.
App. 1993).
-11-
11
"the nature of the challenged conduct and on the purpose and
effect of the conduct." As in Propac, the defendant here
continued to act as though a legal relationship were in place
when it was not and the conduct was unilateral and self-
serving. In both cases, some harm was also done to third
parties -- in this instance, the closing attorney and the
electric company. In each instance, the plaintiff was
particularly vulnerable and the defendant's unfair conduct
gave it greater leverage.
The record also easily supports the trial judge's
findings that after February 2, 1990 NASCO believed it had a
firm deal with PSI and that such a belief was reasonable and
induced by PSI's actions. Cf. Greenstein v. Flatley, 474
N.E.2d 1130 (Mass. App. Ct. 1985). As the trial judge found:
PSI used the period between February 2,
1990 and March 19, 1990 to complete its
assessment of the economic soundness of
the purchase of the Chelsea Property. To
keep all of its options open, PSI
unfairly and deceptively led NASCO to
believe that the parties had entered into
a binding agreement and the deposit was
delayed merely because of administrative
inefficiencies. All the while, PSI
actually withheld the deposit because it
reasoned that the failure to pay the
deposit would permit PSI to repudiate the
agreement if, after review, the purchase
of the Chelsea Property seemed not be an
economically advantageous transaction.
Thus when PSI determined that the
purchase was indeed economically unsound,
it instructed its lawyer to advise NASCO
that the deal was off.
During February and March, NASCO's attorney and
-12-
12
broker made several inquiries concerning the late deposit.
They testified that PSI reassured them that the delays were
simply the result of PSI's bureaucratic procedures, and that
PSI never indicated that the contract had expired. It was
only after the filing of NASCO's lawsuit that PSI claimed the
contract had expired because of the unpaid deposit.
Attorney's Fees
The more difficult question is whether NASCO
suffered any adverse effects sufficient to trigger liability
for attorney's fees under chapter 93A. In Jet Line, the
court held that "Under 11, a plaintiff must be entitled to
relief in some other respect in order to be entitled to an
award of attorneys' fees. . . . Under 11, [the] unfair or
deceptive conduct must have had some adverse effect upon the
plaintiff, even if it is not quantifiable in dollars." Jet
Line, 537 N.E.2d at 115. Because this is a 11 business
case, and not a 9 consumer case, the Jet Line rule applies.
The trial judge found that NASCO had not shown that
there were any other potential buyers for the building in
this February/March 1990 time frame, so NASCO could not claim
the sale value of the building as damages. The district
court found two elements of damage: NASCO, believing it had a
contract, incurred legal fees in anticipation of a closing,
and NASCO suffered losses in the form of the costs associated
with restoring power to the Chelsea property at the request
-13-
13
of PSI. Such effects would indeed meet the Jet Line
requirement of "adverse effects." See also Star Financial
Services, Inc. v. AA Star Mortgage Corp., 89 F.3d 5, 15 (1st
Cir. 1996) (award of injunctive relief based on demonstrated
risk of future actual loss constitutes an unquantifiable
"adverse effect" under Jet Line); Jillian's Billiard Club of
America, Inc. v. Beloff Billiards, Inc., 619 N.E.2d 635, 638
(Mass. App. Ct. 1993) (where no damages awarded, value of
what was taken or start up costs, which might have been
quantifiable, are sufficient to support award of attorney's
fees).
PSI argues that the record does not support these
conclusions for two reasons. First, while NASCO incurred
legal fees for work by counsel in anticipation of a closing,
there is no evidence that it ever paid those bills, and is
not now obligated to pay as any claim for legal services is
barred by the statute of limitations. Second, NASCO did not
reactivate electricity at PSI's request during the Chapter
93A violation period and it did not pay for the electric
expenses because it took the position that PSI was
responsible to pay those costs and because NASCO had no money
to pay these bills.
The record shows that Peter Cooney, NASCO's broker
for the property, was contacted by Kevin Kinneavy of PSI, who
requested that power be restored to the property. In
-14-
14
response, NASCO's attorney, Thomas Bennet, sent a letter
dated February 12, 1990 to Boston Edison requesting that
power be restored to the property. Mr. Bennet sent copy of
this letter to Mr. Kinneavy. Witnesses testified that power
was subsequently restored to the property, and Harvey
Shapiro, NASCO's vice president, testified that Boston Edison
billed NASCO after February of 1990, but that these bills
were not paid. Attorney Bennet's billing records, which
listed several entries connected with the sale of the Chelsea
property between February 2 and March 19, 1990, were also in
evidence.
In light of this evidence that NASCO incurred both
legal and electrical bills and the trial judge's implicit
finding that the bills were in fact incurred, PSI's argument
evolves to a contention that because NASCO did not pay these
bills, it has suffered no "adverse effects" under Jet Line
and is not entitled to damages. NASCO's failure to pay the
bills means that it did not recover damages for those
liabilities, but it does not mean that NASCO did not suffer
adverse effects. To the extent that PSI's objection is that
the bills were not valid or the debts were not validly owed,
the trial judge implicitly found against PSI. It would, of
course, be a different matter if the bills were inflated or
fictitious. To the extent that PSI's objection is that there
were valid debts, but NASCO did not pay them, the decision of
-15-
15
the Supreme Judicial Court in DiMarzo v. American Mut. Ins.
Co., 449 N.E.2d 1189 (Mass. 1983) is instructive. Although
DiMarzo dealt with a judgment and not a mere bill, the
Supreme Judicial Court held that entry of a judgment
constitutes a loss of money for purposes of chapter 93A. In
addition, DiMarzo said, "[t]he loss does not turn on whether
the judgment has been satisfied." Id. at 1196. While a
judgment is admittedly different than a bill, that a valid
debt (evidenced by a bill) has not been paid does not mean
that there has been no adverse effect.
PSI's unfair and deceptive practices caused NASCO
to incur these legal and electrical bills. This worsened
NASCO's financial position and put it at risk of suit on
these bills. PSI should not avoid attorney's fees for its
behavior because NASCO could not pay bills it would not have
incurred had PSI not violated the law. Indeed, PSI's
position seems contrary to the intent of chapter 93A.
Vulnerable, struggling companies in bad bargaining positions
are more likely to need the protection of chapter 93A than
robust, successful companies. If we adopt PSI's position,
impecunious businesses, unable to pay their bills and trying
to sell their assets in order to do so, would be placed on a
different footing under chapter 93A than more solvent
plaintiffs. The purpose of the chapter 93A 11 attorney's
fees provision is to deter businesses from engaging in unfair
-16-
16
and deceptive trade practices where those practices have
adverse effects. See Commonwealth v. Fall River Motor Sales,
Inc., 565 N.E.2d 1205, 1214 (Mass. 1991); Manning v.
Zuckerman, 444 N.E.2d 1262, 1266 (Mass. 1983) ("Through the
imposition of penalties for specific unfair or deceptive acts
or practices between particular individuals, the statute
seeks to deter these practices and to reduce the general
danger to the public arising from the potential for such
unscrupulous behavior in the marketplace."). We conclude
that NASCO was eligible for an award of attorney's fees.
NASCO argues that the district court's fee award
was too small. But Jet Line, 537 N.E.2d at 114-15, holds
that an attorney's fees award should be adjusted to eliminate
any award for legal services rendered in connection with
unsuccessful claims. The district court acted well within
its discretion when it decided to award NASCO only part of
the attorney's fees and costs NASCO had incurred in the
course of this litigation. See DiMarzo, 449 N.E.2d at 1202
("The amount of reasonable attorney's fees under c.93A is
within the broad discretion of the trial judge."); Linthicum
v. Archambault, 398 N.E.2d 482, 488 (Mass. 1979), overruled
in part on other grounds by Knapp Shoes, Inc. v. Sylvania
Shoe Mfg. Corp., 640 N.E.2d 1101, 1105 (Mass. 1994).
V.
To conclude, we hold that the district court
-17-
17
correctly applied the law of chapter 93A to this case. The
record clearly supports the district court's finding that
PSI's actions from February 2 to March 19 of 1990 violated
chapter 93A's prohibition of unfair and deceptive trade
practices. The district court was also correct to conclude
that NASCO suffered adverse effects during this period for
which attorney's fees could be awarded. The judgment of the
district court is therefore affirmed. Costs are awarded to
NASCO.
-18-
18 | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/4157264/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DAWN HAHN, : No. 703 MAL 2016
:
Petitioner :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
CYNTHIA LOCH, L.P.N., LEHIGH :
VALLEY FAMILY PRACTICE :
ASSOCIATES, LLC AND LEROY HAHN, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 31st day of March, 2017, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 03-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/5903534/ | Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about March 28, 2012, which, insofar as appealed from, denied plaintiff Philip Wollruch’s (plaintiff) motion for summary judgment and granted defendant Robert Jaekel’s cross motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.
Dismissal of the complaint as against defendant Jaekel was appropriate in this action where plaintiff was injured while participating in a sponsored in-line skating event, when Jaekel lost his balance and collided with him, after another participant veered into Jaekel’s path. Although Vehicle and Traffic Law § 1231 makes the provisions of that statute applicable to in-line skaters on a roadway, plaintiff failed to raise a triable issue regarding whether Jaekel violated an applicable provision of the Vehicle and Traffic Law.
Moreover, plaintiff, a participant in a sponsored sporting event, assumed the risk of injury from a fall or collision with another skater, since falling is an inherent part of the sport (see e.g. Anand v Kapoor, 15 NY3d 946, 947-948 [2010]; compare Custodi v Town of Amherst, 20 NY3d 83 [2012]). Indeed, plaintiff testified that falling was “[j]ust part of skating,” and he failed to present evidence that Jaekel’s conduct was reckless or intentional. Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Román, JJ. [Prior Case History: 2012 NY Slip Op 30773(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903535/ | Kane, J. P.
Appeal from a judgment of the Supreme Court (Plumadore, J.), entered April 30, 1987 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner was released on parole to the Syracuse area parole office on July 8, 1986. Among the conditions of his parole were requirements that he attend meetings of Alcoholics Anonymous, abstain from the use of alcoholic beverages and agree to compulsory attendance at a residential drug program which he could not leave without the permission of his parole officer. On September 24, 1986, a parole violation warrant was issued charging petitioner with violating the conditions of his parole in that, on September 22, 1986, he failed to abstain from the use of alcohol, was found to have a blood alcohol content of .16% and, admittedly and for the fifth time, left his mandated residential alcoholic treatment program without permission of his parole officer. Petitioner was taken into custody on September 24, 1986 and waived his right to a preliminary hearing on that date.
Apparently because of overcrowding of detention facilities in the Syracuse area, petitioner was transferred to Rikers Island House of Detention in New York City for his final revocation hearing. Petitioner retained the Legal Aid Society to represent him, and his counsel, by letter dated November 12, 1986, made demand upon respondent State Division of Parole (hereinafter the Division) for a number of documents and reports. Petitioner’s counsel also made a demand for a local final revocation hearing pursuant to Executive Law § 259-i (3) (e) (i), which, in pertinent part, provides: "If the alleged violator requests a local revocation hearing, he shall be given a revocation hearing reasonably near the place of the alleged violation or arrest if he has not been convicted of a crime committed while under supervision.”
However, the final hearing was held at Rikers Island on December 4, 1986, which resulted in a finding revoking parole and directing incarceration. The Hearing Officer found the objection to the nonlocal character of the hearing without merit, noting petitioner’s continued use of alcohol and his lack of interest in rehabilitation. In so finding, the Hearing Officer *819rejected as irrelevant petitioner’s argument that the location of the hearing in New York City prevented him from providing proof of some acceptable alternative to incarceration. An application by petitioner for a writ of habeas corpus was denied by Supreme Court and this appeal ensued. The issue to be resolved is whether relief should have been granted to petitioner because he was not afforded a "local” final revocation hearing upon the charges of violating the conditions of his parole.
In our view, it is significant that the language of the statute in question provides that if a request is made for a local hearing, it "shall be given” at a location "reasonably near the place of the alleged violation or arrest” (Executive Law § 259-i [3] [e] [i]). In People ex rel. Weiner v LeFevre (78 AD2d 736, appeal dismissed 54 NY2d 931), this court rejected a similar contention, finding that a hearing held over a petitioner’s objection at Ossining Correctional Facility rather than Rikers Island was authorized because there was no showing that Ossining was not as "local” as Rikers Island in terms of traveling time, or that the alleged witnesses inconvenienced by the distance involved would have provided relevant evidence at the hearing.
However, here there can be no valid claim that Syracuse is as "local” as Rikers Island and, in view of the mandatory language of the statute, we are compelled to conclude that in this case petitioner remains entitled to his final revocation at a place "reasonably near” Syracuse. Moreover, we cannot interpret the statutory language to require that petitioner establish that he is otherwise prejudiced by virtue of the sites of the hearing in order to obtain the relief he seeks (see, People ex rel. Weiner v LeFevre, supra).
Finally, we recognize another statutory requirement that a timely hearing be held (Executive Law § 259-i [3] [Fj [i]), and we acknowledge that overcrowding of detention facilities presents significant and practical administrative difficulties. However, the disparity in location between Syracuse and Rikers Island is such as to render the words "reasonably near” meaningless if petitioner is not entitled to relief. Accordingly, the Division should be required to provide petitioner with a final revocation hearing at a location reasonably near the place of his alleged parole violation.
Judgment reversed, on the law, without costs, and writ of habeas corpus granted to the extent that respondent Superintendent of Clinton Correctional Facility produce petitioner before respondent State Division of Parole for the purpose of *820conducting a final revocation hearing upon the charges herein contained in warrant No. 99642 at a location reasonably near the place of his arrest thereon. Kane, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903536/ | Yesawich, Jr., J.
Appeal from that part of an order of the Supreme Court (Brown, J.), entered February 9, 1987 in Saratoga County, which denied a motion by defendants International Harvester Company and Carswell Truck Center, Inc., for summary judgment dismissing the complaint and cross claims against them.
Plaintiff Raymond W. Kirchoff suffered personal injuries when thrown from a truck, in which he was riding as a passenger, as it flipped over following a brake failure on an icy road. Included among defendants in the action subsequently brought by Kirchoff and his wife are International Harvester Company (hereinafter Harvester), the manufacturer of the truck, and Carswell Truck Center, Inc. (hereinafter Carswell), the dealership which sold the truck to KirchofFs employer. The complaint, insofar as it is directed at Harvester and Carswell, asserts theories of strict products liability. Plaintiffs maintain that the accident was proximately brought about by (1) a hole in the brake line which caused the single service brake system to fail, (2) the absence of a functional emergency brake, (3) the lack of seat belts, and (4) the defective and unsafe design of the truck, in that, when sold, it was not equipped with a dual braking system.
Harvester moved for summary judgment, urging that subsequent alterations made to the truck after it left Harvester’s control, inter alia, removal of the emergency brake handle, removal of the seat belts and incapacitation of safety features that prevented the brake line from rubbing against the chassis (the cause of the hole in the brake line), were the proximate causes of the accident, and, therefore, it was free of liability as a matter of law. Plaintiffs replied that a dual brake system, which provides braking power to the front wheels even in the event of a rear wheel brake line failure, would have prevented this unfortunate occurrence and that a similar accident, of which Harvester was aware, imposed on it the duty to warn. Supreme Court denied Harvester’s motion and, after receiving and reviewing memoranda from counsel on a discovery issue, granted plaintiffs’ cross motion for fur*821ther discovery. No appeal was taken from this order, entered May 11, 1984. Upon completion of discovery, Harvester and Carswell, whose alleged liability is predicated solely on Harvester’s liability, moved for summary judgment in their favor. When their motion was denied they brought on this appeal, which plaintiffs thereupon moved to dismiss claiming, inter alia, the order was not appealable. This court denied plaintiffs’ motion without prejudice. Upon full development of the issue, we now conclude that Harvester’s and Carswell’s appeal should be dismissed.
The instant appeal is from an order explicitly denying leave to reargue; such an order is not appealable (see, Alessi v County of Nassau, 100 AD2d 561, 562; Siegel, NY Prac § 254, at 314). It is of no moment that Supreme Court in its decision ambiguously characterized the motion as one for “permission to reargue or renew the prior motion”, for the appeal is from the order (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5512:l, at 130-131). Harvester’s and Carswell’s contention that their motion was in fact a motion to renew is not persuasive. The record discloses Harvester and Carswell to be relying upon the same legal theory and offering little new material information, as required of a motion to renew (see, Matter of Hooker v Town Bd., 60 AD2d 684, 685). Furthermore, since the information offered does little more than expand upon the extent to which. alterations were made to the truck subsequent to its sale and does not diminish the force of plaintiffs’ defective design claims (see, Sage v Fairchild-Swearingen Corp., 70 NY2d 579), Harvester and Carswell have not demonstrated that this purportedly newly discovered evidence would have warranted a different result (Matter of Banow v Simins, 53 AD2d 542, appeal dismissed 40 NY2d 989).
Even if we were to reach the merits, this appeal would be unsuccessful, for plaintiffs make out a prima facie case in strict products liability (see, Spinosa v International Harvester Co., 621 F2d 1154; see also, Sage v Fairchild-Swearingen Corp., supra) and Harvester and Carswell have not carried their burden of proving that material triable factual issues do not exist.
Appeal dismissed, with costs. Kane, J. P., Weiss, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903538/ | Weiss, J.
Appeal from an order of the Supreme Court (Harlem, J.), entered March 9, 1987 in Broome County, which denied defendant’s motion for summary judgment dismissing the complaint.
In June 1982, George K. Sarkisian, defendant’s president, hired plaintiff to take over, manage, lease, develop and generally supervise the real estate holdings owned by defendant or its affiliates. Plaintiff maintains that compensation, terms and conditions of employment were set forth by Sarkisian in an internal memorandum dated June 7, 1982. This memorandum was modified or clarified by succeeding memoranda dated June 22, 1982, March 29, 1983 and December 11, 1984. Plaintiff endeavored to set forth his understanding of the compensation plan and terms of employment in a memorandum to Sarkisian dated December 17, 1984.
Plaintiff was terminated on or about August 26, 1985. Plaintiff commenced this action on March 4, 1986 seeking, in his first cause of action, $355,755 as damages for breach of the alleged employment agreement. He contends that he was to receive various specific percentages of rental income dependent upon the circumstances under which the rentals were received and also an equity position in real estate developments which he originated. The second cause of action seeks recovery on the basis of quantum meruit for managerial, sales and development services performed in the identical sum of $355,755. The answer asserts several affirmative defenses based upon the absence of a writing sufficient to satisfy the Statute of Frauds. In addition, defendant asserts (1) that Real Property Law article 12-A bars recovery of real estate commissions by a nonlicensed broker or salesman, (2) that the complaint fails to state a cause of action, (3) waiver and estoppel, and (4) that if any contract existed, it was breached by plaintiff. Defendant also counterclaimed to recover $43,454.89 for advance payments never earned by plaintiff. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint, giving rise to this appeal.
*824To satisfy the Statute of Frauds, a writing must include " 'substantially the whole agreement, and all its material terms and conditions, so that one reading it can understand from it what the agreement is’ ” (Kobre v Instrument Sys. Corp., 54 AD2d 625, 626, affd 43 NY2d 862, quoting Mentz v Newwitter, 122 NY 491, 497). However, "[t]he statute does not require the writing 'to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject matter and occasion’ ” (Klein v Jamor Purveyors, 108 AD2d 344, 347-348, quoting Marks v Cowdin, 226 NY 138, 145; see, Crabtree v Arden Sales Corp., 305 NY 48, 54). Parol evidence and proof of the surrounding circumstances may be presented (Abady v Interco, Inc., 76 AD2d 466, 472). The essential elements of an employment contract are the parties to the contract, the position to be assumed, the salary or compensation to be received and the duration (Crabtree v Arden Sales Corp., supra, at 54).
These principles in mind, we find that the several memoranda in the record generated by Sarkisian, when read together, demonstrate an employment relationship commencing June 7, 1982, terminable at will upon 30 days’ notice, with the duties and compensation levels listed. While resort to other books, records, documents and the conduct of the parties may be necessary to ascertain specific compensation and other intentions, at least the two memoranda which bear authentication by Sarkisian establish a contractual relationship between the parties for plaintiff’s employment (see, Grimm v Marine Midland Bank, 117 AD2d 901, 903; cf., Maiman v Luftek, Inc., 88 AD2d 946, 947). The combined writings form a contract and refute defendant’s claim that the Statute of Frauds bars recovery. Inasmuch as the issues revolve around plaintiff’s employment, there is no merit to defendant’s claim that Real Property Law § 442-a bars recovery (see, e.g., Seider v Fagin, 40 Misc 2d 425, 426). Where there is any significant doubt whether triable issues of fact exist, summary judgment should be denied (Phillips v Kantor & Co., 31 NY2d 307, 311), particularly when, as here, sufficient writings to satisfy the Statute of Frauds exist and it does not appear that the parties intended to require a fully executed contract to bind them (see, APS Food Sys. v Ward Foods, 70 AD2d 483).
Order affirmed, with costs. Kane, J. P., Weiss, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903539/ | Casey, J.
Petitioner, an inmate at Great Meadow Correctional Facility, was charged with assaulting a fellow inmate, possession of a weapon and refusing to obey a direct order. The charges were based upon a misbehavior report filed by the facility’s cook, who did not see either the assault or the weapon. According to the cook’s report, he saw petitioner enter the kitchen followed by another inmate who had a fork in each hand. When petitioner picked up a long-handled scrub brush, the cook ordered the inmates to stop and they both refused to comply with the order. The cook then stepped in and took the forks from the other inmate, and petitioner dropped the scrub brush. According to the cook’s report, as the other inmate was being led away, the inmate said, "He shanked me,” pointing to his neck.
At the Superintendent’s proceeding, the only witness to appear was the cook. Petitioner requested that the other inmate be called as a witness, but the other inmate refused to appear at the hearing. The Hearing Officer sustained the charges, stating that he relied upon the misbehavior report and a photograph of a weapon. The Hearing Officer’s report also stated that he relied upon certain confidential material, consisting of a supplemental investigation report, a confidential signed inmate statement and an interdepartmental report concerning the discovery of a weapon in a bucket of swill the day after the alleged assault. No reason was given for the confidentiality. The Hearing Officer’s disposition was ultimately sustained by respondent. Supreme Court rejected petitioner’s claim that respondent’s determination should be annulled due to the Hearing Officer’s failure to advise petitioner at the time of the hearing that confidential material would be considered and to articulate a reason for the confidentiality. Supreme Court held that the error was harmless. We disagree.
In Matter of Boyd v Coughlin (105 AD2d 532, 533), we declared: "[I]t is fundamental that the hearing officer must, at the time of the hearing, inform the inmate that he will consider certain information which will remain confidential and articulate some reason for keeping the information confi*826dential.” Based upon our in camera review of the confidential documents in that case and in light of the strength of the case against the petitioner, we concluded that the Hearing Officer’s error in failing to comply with this procedural requirement was harmless (see, supra, at 533-534). We reach a contrary conclusion here. Without the confidential material, the case against petitioner as to the assault and possession of a weapon charges is very weak. The confidential material includes the only direct evidence that petitioner assaulted the other inmate with a weapon. It cannot be said that petitioner was not prejudiced by the Hearing Officer’s consideration of and reliance upon the material, particularly in light of the other inmate’s refusal to appear at the hearing. The determination must, therefore, be annulled and the matter remitted to respondent for a new hearing.
Judgment reversed, on the law, without costs, determination annulled and matter remitted to respondent for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903594/ | Mahoney, P. J., and Kane, J.,
dissent and vote to reverse in a memorandum by Kane, J. Kane, J. (dissenting). In our view, the judgment appealed from should be reversed and a new trial granted. There is ample evidence in this record for a jury to find negligence on the part of Stewart-Scott which was a proximate cause of this accident. The testimony of Brian Mitchell, an employee of Colucci, established that employees of Stewart-Scott selected the method by which the 20-foot I-beam was affixed to the trailer. They also applied the wraparound technique in securing the beam with a chain and binder near the headboard of the trailer. There is no evidence *905in this record that their installation was disturbed by Colucci or any of his employees before it came loose from the trailer as it rounded a curve and ascending grade at the scene of the accident. Therefore, in our view, the jury could assign some degree of responsibility for the dislodging of the beam to Stewart-Scott because of its part in the initial, undisturbed method of affixing the 20-foot beam to the trailer, regardless of any part played by Colucci or his employees.
Consequently, this accident could be found to be a natural and foreseeable consequence of circumstances created by Stewart-Scott, through its superintendent Benson, when he directed Colucci to remove the debris, including the 20-foot beam, from the Mill Street construction site to the storage yard on Cedar Avenue in consideration of a load of bank run gravel previously delivered to another work site by Colucci for Stewart-Scott. Under these circumstances, the actions of Colucci and Shand in unloading the debris at Cedar Avenue and providing additional chains to secure the remaining load should not be held, as a matter of law, to be intervening acts of such an extraordinary nature as to provide a superseding cause to attenuate any prior act of negligence by Stewart-Scott and relieve it of liability (see, Kush v City of Buffalo, 59 NY2d 26). It is for the jury to determine whether Stewart-Scott was negligent and if that negligence was a cause of the ensuing accident (see, Fuller v Preis, 35 NY2d 425), for, of course, and as stated by Supreme Court in its charge to the jury, there may be more than one proximate cause of an accident (see, Gill v Falkowski, 69 AD2d 934, appeal dismissed 47 NY2d 1012).
Therefore, it necessarily follows that the form of the questions submitted by Supreme Court for special findings as to the negligence of the remaining defendants, Colucci and Shand, was improper. In each instance, the requested special finding inquired whether negligence found as to a defendant was the proximate cause of the accident. Thus, the jury was required to choose between either Colucci or Shand in making its determination of liability, a choice which, in our view, was predetermined by the court’s charge that the jury could apply the rule of res ipsa loquitur to the actions of Colucci. This error is compounded by the added issue of Benson’s underlying statutory liability for any negligence the jury could have found on the part of Shand (see, Vehicle and Traffic Law § 388). For, although the complaint had been dismissed as to Benson, a finding of some liability on the part of Shand would add yet another dimension to the size of an ultimate award to *906plaintiff. Furthermore, in our view the court’s error in its request for special findings was fundamental under the circumstances; therefore, the absence of any timely objections does not preclude a consideration of the error in the general exercise of this court’s power to reverse on this issue in the interest of justice (see, Decker v Rassaert, 131 AD2d 626, 627; Dance v Town of Southampton, 95 AD2d 442, 449-450). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903595/ | Mahoney, P. J.
Appeal from a judgment of the Supreme Court (Brown, J.), entered April 21, 1987 in Saratoga County, which granted petitioners’ application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent granting the intervenor’s application for a use and area variance.
Harry Peartree, III, entered into a contract in 1985 to purchase property, located in the City of Saratoga Springs, Saratoga County, from Philip A. Parkhurst. The property consisted of a garage and surrounding land that had been used by Parkhurst’s family from 1919 to 1985 as a repair shop for automobiles and small engines. As contract vendee, Pear-tree applied to the city’s building inspector for permission to operate an automobile repair and body shop. On the ground that the premises were located in an area zoned "R-2”, single-family residential, and a preexisting, nonconforming use as a licensed repair shop had ceased to exist in 1977, Peartree’s application was denied. On appeal to respondent, the building inspector’s denial was reversed. However, petitioners, who are residents of the city, successfully attacked this determination in a CPLR article 78 proceeding in Supreme Court and the case was remanded for further proceedings. Shortly thereafter, the subject property was conveyed to Peartree.
Subsequent to recording his deed, Peartree reapplied to the building inspector for a use and area variance, alleging that the failure to obtain such variance would present unnecessary hardship. The application was denied, and Peartree again appealed to respondent. Petitioners opposed, alleging primarily that any hardship suffered by Peartree was self-created since he purchased the property with knowledge that the prior nonconforming use had ceased to exist in 1977. Respondent, finding that hardship did exist, ruled in favor of Pear-tree and granted the variance. Petitioners then commenced this article 78 proceeding and Supreme Court annulled re*907spondent’s determination, stating that Peartree had intentionally "entered into a prohibited enterprise” and had "created and contributed to his own hardship”. This appeal by respondent and Peartree ensued. We affirm.
Hardship is self-created where the applicant for a variance acquired the property subject to the restrictions from which he seeks relief (see, Matter of Romanelli v Bonvouloir, 102 AD2d 872). Even if a prospective purchaser of property does not have the actual knowledge of the applicable provisions of an ordinance, he is bound by them and by the facts and circumstances concerning the use of the property which he may learn by exercising reasonable diligence (see, Matter of Paplow v Minsker, 43 AD2d 122, 124). Here, Peartree chose to consummate the purchase of the subject property despite his knowledge that the area where the garage was located was zoned R-2, single-family residential, and that the building inspector had twice denied applications for permits. He was also aware that a court proceeding challenging his right to a variance was pending. In short, rather than waiting for a resolution of the problem by Supreme Court, which he knew would be shortly forthcoming, Peartree engaged in an effort to complete the transaction before the court’s decision and then attempted to use the doctrine of vested rights to prevail (see, Shumaker v Town of Cortlandt, 124 AD2d 129, appeal dismissed 69 NY2d 984, lv denied 70 NY2d 603).
Judgment affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5907538/ | Judgment, Supreme Court, New York County (Luis Ñeco, J.), rendered on November 22, 1985, unanimously affirmed.
Application by appellant’s counsel to withdraw as counsel is granted. (See, Anders v California, 386 US 738; People v Saunders, 52 AD2d 833.) We have reviewed this record and agree with appellant’s assigned counsel that there are no nonfrivolous points which could be raised on this appeal. Concur — Ross, J. P., Carro, Asch, Kassal and Smith, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903544/ | *525Orders, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about February 3, 2012, which, insofar as appealed from, upon a finding of mental illness, terminated respondent mother’s parental rights to the subject children, and committed custody and guardianship of the children to petitioner agency and the Commissioner of the Administration for Children’s Services for the purpose of adoption, unanimously affirmed, without costs.
Clear and convincing evidence, including the expert testimony from a court-appointed psychologist, who examined the mother on two occasions and reviewed all of her available medical records, supported the determination that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for her children (see Social Services Law § 384-b [4] [c]; [6] [a]; Matter of Faith D.A. [Natasha A.], 99 AD3d 641 [1st Dept 2012]). The psychologist testified that the mother suffered from schizophrenia and her prognosis was “very poor.” She had periods of noncompliance with her medications and exhibited symptoms regularly, whether or not she was compliant with treatment. Concur— Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1159760/ | 37 Wn. App. 881 (1984)
683 P.2d 1131
In the Matter of the Marriage of JOAN BEPPLE, Respondent, and GENE BEPPLE, Appellant.
No. 5381-4-III.
The Court of Appeals of Washington, Division Three.
June 21, 1984.
Philip A. Lamb, Terry A. Brooks, and Brooks & Larson, for appellant.
Wiley G. Hurst and Elofson, Vincent, Hurst, Crossland & Menke, for respondent.
GREEN, J.
Gene Bepple appeals the court's division of property in a decree entered August 19, 1982, dissolving his marriage to Joan Bepple. He contends the court erred in awarding Mrs. Bepple an interest in the proceeds of a stock redemption agreement which he argues is his separate property.
When the Bepples were married, Mr. Bepple owned 50 shares of stock in Valicopters, Inc., constituting a one-third interest. The remaining shares were owned by Ray Land and Stanley Hillwick, equally. During marriage Mrs. Bepple loaned the corporation $2,000 of her separate funds for operating expenses. She and Mr. Bepple also signed an *883 agreement with Peoples National Bank of Washington personally guaranteeing repayment of loans obtained from the bank for the corporation's expenses. The bank required both signatures before extending the loans. The guaranty was executed March 1, 1979, and covered substantial loans for that year, 1980 and 1981. It appears to be undisputed that the $2,000 from Mrs. Bepple was repaid and the corporation was never in default on the bank loans.
On May 1, 1979, a redemption agreement was executed whereby Mr. Hillwick sold his stock to the corporation for $73,300 plus interest payable in 96 monthly installments. This agreement and a promissory note for the redemption price were executed by Messrs. Bepple and Land individually and as officers of the corporation.
On January 21, 1981, a petition was filed to dissolve the Bepples' marriage. On August 20 a redemption agreement was executed between Mr. Bepple and the corporation for his 50 shares of stock. The price was $162,000, payable in 96 monthly installments of $2,458.22 each. A promissory note for the redemption price was signed by Mr. Land individually and as the corporation's president and by Mrs. Land.
Mr. and Mrs. Bepple entered into a property settlement agreement dividing all their property except the interest in the stock redemption agreement. The division of that property was submitted to the court at the dissolution hearing. The court determined the proceeds from the agreement were partially community and partially Mr. Bepple's separate property.
The court's findings, as explained in its memorandum opinion, were as follows: As a practical matter, the redemption of Mr. Hillwick's 50 shares of stock constituted a purchase by Mr. Bepple and Mr. Land of 25 shares each; consequently, Mr. Bepple's interest in the corporation increased after the Hillwick redemption agreement from one-third to one-half or by 16 2/3 percent. Mr. Bepple's signature on the redemption agreement and note created a community obligation and payment for the shares. In addition, *884 the continued operation of Valicopters, Inc., would not have been possible without the pledge of community credit through the guaranty signed by Mr. and Mrs. Bepple for the corporate loans from Peoples National Bank. Based on this reasoning, the court determined Mr. Bepple's interest in the Hillwick stock was community property. Mrs. Bepple was awarded 16 2/3 percent of each monthly payment made to Mr. Bepple under his redemption agreement.
Mr. Bepple asserts the court erred in this award. He argues neither his signature on the Hillwick redemption agreement and the promissory note nor his and Mrs. Bepple's signatures on the personal guaranty of the loans obtained from Peoples National Bank created a community interest in the corporation. Hence, he contends any increase in the value of his stock constituted the rents, issues and profits of separate property and remained separate.
[1, 2] We agree there was no community acquisition here. The Hillwick redemption agreement was a corporate acquisition. While Mr. Bepple may have been a surety on the note accompanying the agreement, see Warren v. Washington Trust Bank, 19 Wn. App. 348, 357, 575 P.2d 1077 (1978), aff'd, 92 Wn.2d 381, 598 P.2d 701 (1979), there is nothing therein to indicate either he or Mr. Land were purchasing the shares. Additionally, the redemption of Mr. Bepple's stock was for 50 shares, the same number he possessed before marriage. Further, his signature as a shareholder on the note was not a community contribution. See Union Sec. Co. v. Smith, 93 Wash. 115, 160 P. 304 (1916); Spinning v. Allen, 10 Wash. 570, 39 P. 151 (1895). Since the court must have in mind the correct character of the property before dividing it, Baker v. Baker, 80 Wn.2d 736, 746-47, 498 P.2d 315 (1972), we are constrained to reverse.
[3] Correcting the characterization of the property does not end the inquiry. It is well established the community is entitled to an equitable lien for its contribution to separate property. Baker v. Baker, supra at 745; McCoy v. Ware, 25 Wn. App. 648, 650, 608 P.2d 1268 (1980); In re Marriage of Harshman, 18 Wn. App. 116, 567 P.2d 667 (1977). Mr. *885 Bepple argues his corporate salary was adequate compensation to the community, citing Hamlin v. Merlino, 44 Wn.2d 851, 272 P.2d 125 (1954). In Hamlin, however, the community contribution was only through the husband's labors. Here Mrs. Bepple put both her separate property and her interest in the community property at risk by guaranteeing payment of several substantial loans which enabled the corporation to pay operating expenses and purchase equipment at a time when it was in financial jeopardy.
The court, in its memorandum opinion, found the corporation was in debt before obtaining the loans and the bank would not have extended the loans but for the guaranty. The loans, in turn, were necessary to maintain the business and purchase Mr. Hillwick's stock. Hence, the continued operation of Valicopters, Inc., and the increase in value of Mr. Bepple's stock, as evidenced by the redemption price, is due at least in part not only to his labors but also to the community guaranty to obtain the loans.
The mandate of RCW 26.09.080 is to make a just and equitable disposition in light of all the parties' property and the facts before the court. Because the trial judge's distribution was so closely linked to his characterizing the Hillwick stock redemption as a community purchase, we are unable to discern whether and to what extent he otherwise would have granted Mrs. Bepple a percentage of the payments under Mr. Bepple's stock redemption agreement. We note, parenthetically, the judge's award of 16 2/3 percent interest to Mrs. Bepple appears to have been excessive because under his analysis that percent constituted the entire community interest. We, therefore, remand for redistribution of the proceeds in light of our determination with respect to the Hillwick redemption. In doing so, the court may take into consideration the parties' property settlement agreement and the community's contribution to the corporation through the guaranty of corporate debts together with Mrs. Bepple's personal loan.
Mrs. Bepple's request for attorney fees is denied.
*886 Reversed and remanded.
MUNSON, C.J., and McINTURFF, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903547/ | Weiss, J.
Appeal from an order of the Family Court of Chemung County (Frawley, J.), entered January 15, 1987, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, to extend the placement of respondent’s son with petitioner for a period of 12 months.
Respondent’s son, now age 16 and the subject of the instant proceeding for extension of placement with petitioner, was first adjudicated a neglected child in 1976 and has continually remained in the custody of petitioner through repeated placement extensions. Following a hearing on December 15, 1986, petitioner’s application for an additional 12-month placement was granted, extending through to December 10, 1987. Respondent now appeals from that determination.
We affirm. To justify the further extension, petitioner was required "to establish either the continued unfitness of the parents or that return of the child would likely result in physical or psychological harm” (Matter of Faith Z., 92 AD2d 990, lv denied 59 NY2d 601; emphasis supplied). The record shows that respondent’s son is a legally blind and multihandicapped child, with only nursery school level skills. He has been a student at the New York State School for the Blind in Batavia since the age of six and presently resides there, returning home on weekends and vacation periods. Family Court essentially determined that it would be in the child’s best interest to remain in petitioner’s custody to ensure the continuity of specialized care and education available at the school. We find ample basis in the record to support this conclusion. The medical social worker at the school testified that the child was often agitated following a home visit, and that returning home from school each day would prove disruptive to his educational and emotional development. This witness further opined that respondent has difficulty dealing with her son in a consistent, age-appropriate manner. There was further testimony that respondent has difficulty disciplining her son. An extension of placement rests within Family *835Court’s discretion (Family Ct Act § 1055 [b] [i]; see, Matter of Sunshine A. Y., 88 AD2d 662, 663), and while recognizing respondent’s good-faith intentions, we find no reason to alter the determination reached.
Order affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903548/ | Casey, J.
Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered March 2, 1987, upon a verdict convicting defendant of the crimes of burglary in the first degree and attempted robbery in the second degree.
A police officer, who was responding to a radio transmission concerning a man peering into windows at 496 Madison Avenue in the City of Albany, observed defendant hurriedly exit from the rear door of that building. Since defendant fit the description in the radio transmission, the officer restrained him, questioned him and placed him in the police vehicle. Further investigation revealed that an intruder had forced his way into the basement apartment of 81-year-old Clarence Gordon, who injured his hip in the scuffle. A friend and neighbor of Gordon, Joseph Shubert, who had telephoned the police after observing defendant’s activities in the vicinity of 496 Madison Avenue, came over to assist Gordon. Upon leaving Gordon’s apartment, Shubert observed defendant sitting in the police car.
Defendant was indicted on charges of burglary in the first degree and attempted robbery in the second degree. After a jury trial, defendant was convicted as charged, and he was sentenced as a predicate felon to concurrent terms of imprisonment of 12 Vi to 25 years and 3 to 6 years.
Contrary to defendant’s claim on this appeal that it was error to permit peremptory exclusion by the prosecution of the only black venire person on the panel, we find that defendant did not meet the burden imposed in this regard. In order to establish a prima facie case of impermissible discriminatory exclusion, defendant must show not only that he is a member of the same racial group as the excluded juror, but also that the relevant circumstances, including the voir dire questioning, indicate a pattern of exclusion. When this burden is met by defendant, the burden shifts to the prosecution to provide a neutral reason to explain its peremptory challenge (Batson v Kentucky, 476 US 79; see, Roman v Abrams, 822 F2d 214, 226; People v Baysden, 128 AD2d 795). Although the *836record does not contain a transcript of the voir dire, that issue need not be considered since defendant has failed to make out a Batson v Kentucky (supra) prima facie showing (see, People v Morales, 126 AD2d 836, 837).
As to the failure of County Court to suppress Shubert’s showup identification of defendant, we believe that Shubert’s viewing of defendant sitting in the police car was spontaneous and accidental, and was properly admitted under the second exception stated in People v Riley (70 NY2d 523) (see also, People v Ferkins, 116 AD2d 760, 763-764).
Defendant contends County Court further erred in failing to charge criminal trespass as a lesser included crime of burglary in the first degree. Although not specified, presumably defendant meant criminal trespass in the second degree (see, Penal Law § 140.15). The People concede that, by definition, the crime of criminal trespass in the second degree is a lesser included offense of burglary in the first degree (Penal Law § 140.30 [2]) under the first prong of the test enumerated in People v Glover (57 NY2d 61). Defendant’s testimony, however, does not provide a reasonable view of the evidence requiring such a lesser charge. There is no reasonable basis for rejecting selected portions of the testimony of Shubert, Gordon and the police officer to credit defendant’s version.
Defendant also claims that there was a lack of proof of physical injury to Gordon. Physical injury is defined as "impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). There is an objective level below which the matter, ordinarily one for the fact finder, becomes a matter of law (People v James, 133 AD2d 507). Petty slaps, shoves and kicks do not meet the standard (supra), but lingering pain does (Matter of Philip A., 49 NY2d 198, 200). Testimony of the victim Gordon that his left hip was left sore, bruised and impaired by defendant’s attack and that the soreness and impairment persisted at the time of trial, five months after the crime, was sufficient to create a jury question (see, People v Greene, 70 NY2d 860; People v Rojas, 61 NY2d 726; People v James, supra).
Defendant next claims that prosecutorial misconduct occurred in that the prosecutor used perjured testimony and was "overzealous” in his summation. Defendant’s claim of perjured testimony is based upon an alleged inconsistency between the police report of the incident and the testimony given by the victim at the Grand Jury and at trial. The police report, however, was not made a part of the record. The prosecution *837concedes that an inconsistency exists, but argues that a mere inconsistency does not support defendant’s claim of perjured testimony. We agree and note that defendant makes no claim that the police report contains prior statements by the victim (see, People v Novoa, 70 NY2d 490). As to the prosecutor’s summation, we find nothing so prejudicial about the one comment cited by defendant as to require reversal.
Finally, we find that defendant was not denied the effective assistance of counsel under the standard set forth in People v Baldi (54 NY2d 137, 146) (see also, People v Satterfield, 66 NY2d 796). Accordingly, the judgment of conviction should be affirmed.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903549/ | Kane, J.
Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered January 23, 1987, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Defendant was arrested on November 20, 1986 and charged with a violation of Penal Law § 220.18 (1), criminal possession of a controlled substance in the second degree, a class A-II felony. He was arraigned before a Justice of the local criminal court of an adjoining town due to the unavailability of the Justice of the appropriate town court to whom the felony complaint and all other pertinent documents were transferred for further preliminary proceedings. However, the complaint and related documents were not received and no further proceedings transpired in the local criminal court. Instead, plea negotiations were entered into by defendant’s attorney and the Assistant District Attorney and an application by the People and defendant to County Court for waiver of indictment and arraignment upon a superior court information charging one count of a violation of Penal Law § 220.18 (1) was granted (see, CPL 195.10). Thereafter, in accordance with a negotiated plea, defendant pleaded guilty to a violation of Penal Law § 220.16 (12), criminal possession of a controlled substance in the third degree, a class B felony, and was thereafter sentenced to an indeterminate prison term of 3 Vs to 10 years. This appeal ensued.
We reverse. A waiver of indictment wherein the charge in the felony complaint is a class A felony is constitutionally impermissible and a nullity (NY Const, art I, § 6; CPL 195.10; *838People v Sledge, 90 AD2d 588, lv denied 58 NY2d 977). Accordingly, defendant’s plea of guilty must be vacated, the superior court information dismissed, and the matter remitted to the court of original jurisdiction for further proceedings on the felony complaint.
Judgment reversed, on the law, guilty plea vacated and matter remitted to the Justice Court of the Town of Elmira for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Kane, Weiss, Levine and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903641/ | Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The record unequivocally indicates that the charge of criminal possession of stolen property in the third degree was dismissed by the court during the plea colloquy. Since the amended certificate of conviction shows that defendant was sentenced on that charge, we modify the judgment by reversing that conviction and by vacating the sentence imposed thereon.
The remaining claims advanced by defendant lack merit *944and do not warrant reversal (see, People v Hood, 62 NY2d 863; People v Garrett, 125 AD2d 329). (Appeal from judgment of Ontario County Court, Reed, J. — burglary, second degree, and other charges.) Present — Doerr, J. P., Boomer, Green, Balio and Davis, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823558/ | Method and apparatus of distillation. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903550/ | Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J), entered December 6, 2011, which, in this personal injury action arising from a slip and fall, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff fell on a backstage staircase that she had been sent to clean off accumulated debris. Although plaintiff testified that there was “poor lighting” on the backstage staircase where she fell, she testified that she fell because the step was uneven or pitched forward. Thus, plaintiff failed to submit sufficient evidence to raise an issue of fact as to whether the alleged poor lighting was a proximate cause of her fall (see Batista v New York City Tr. Auth., 66 AD3d 433, 434 [1st Dept 2009]; Kane v Estia Greek Rest., 4 AD3d 189, 190 [1st Dept 2004]).
Moreover, plaintiffs expert’s opinion that the stairs violated Administrative Code of the City of New York former §§ 27-127 and 27-128, is unavailing. Those sections “merely require that *526the owner of a building maintain and be responsible for its safe condition,” and liability will not be imposed in the absence of a breach of some specific safety provision (Hinton v City of New York, 73 AD3d 407, 408 [1st Dept 2010],.lv denied 15 NY3d 715 [2010] [internal quotation marks omitted]). Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903551/ | Levine, J.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a [4]) to review a determination of respondent which suspended petitioner’s license to practice medicine in New York.
Petitioner is a physician licensed to practice medicine in New York and New Jersey. It is undisputed that from 1978 to 1982 petitioner, a doctor of osteopathy, used the degree designation "M.D.” after his name rather than "D.O.”. Petitioner’s use of the "M.D.” designation resulted in disciplinary charges in New Jersey based on this misrepresentation. In January 1985, the New Jersey State Board of Medical Examiners issued a final order against petitioner, upon his consent, which determined that petitioner had knowingly identified himself with an academic degree he did not possess and imposed the sanction of a reprimand and a fine of $2,500.
Two years later, a direct referral proceeding was commenced against petitioner in this State by the Office of Professional Medical Conduct. This proceeding was based solely on the acts committed in New Jersey which resulted in the January 1985 final order of the New Jersey State Board of Medical Examiners (see, Education Law § 6509 [5] [b]). A hearing was held before the Regents Review Committee, which found that the charge against petitioner had been proven by a preponderance of the evidence and unanimously recommended that petitioner’s license be suspended for two years, with the last 21 months stayed and petitioner placed on probation for that period. The Board of Regents accepted the findings and recommendation of the Regents Review Committee and a final order was issued by respondent. Petitioner commenced this CPLR article 78 proceeding to review respondent’s determination.
At the outset, we note that petitioner has waived his objec*839tion to the sufficiency of the charges by failing to raise it at the administrative hearing (see, Matter of Sasson v Commissioner of Educ., 127 AD2d 875, 876). In any event, this contention is without merit; the statement of charges was adequate to enable defendant to prepare and present a defense (see, Matter of Widlitz v Board of Regents, 77 AD2d 690, 691, lv denied 51 NY2d 706). Petitioner likewise failed to preserve the contention that the determination must be annulled because the acts underlying the New Jersey order would not constitute professional misconduct if committed in New York. However, this contention is meritless since the New Jersey order found that petitioner had acted knowingly and this is sufficient to support a finding of unprofessional conduct under Education Law § 6509 (9) and 8 NYCRR 29.1 (b) (12) regardless of whether it could also be considered fraudulent under Education Law § 6509 (2).
Finally, we reject petitioner’s contention that the penalty imposed by respondent, in light of all the circumstances, was excessively harsh. In our view, it was within respondent’s discretion to impose a penalty which amounts to a 3-month suspension and a 21-month probationary period.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Weiss, Levine and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903552/ | Kane, J.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered August 7, 1987, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.
On October 12, 1986, Detective Michael Andrews of the Ulster County Sheriffs Department applied for a warrant to search the "residence of Fred Earl Jr.” The warrant application was based primarily on information Andrews gathered from informants Gregory Auchmoody and William Schwarz.
Andrews’ affidavit states that on October 12, 1986, at about 7:50 a.m., a Deputy Sheriff stopped Auchmoody’s car, searched it and discovered about one pound of marihuana. After his arrest, Auchmoody was questioned by Andrews and said that the marihuana belonged to Schwarz, that at 6:00 a.m. that day he had dropped off Schwarz at Hoagerburgh Road in the Town of Shawangunk, Ulster County, and that he overheard Schwarz say that "he was going to Fred’s house to pick up a bag”.
*840Andrews’ affidavit also relates that on October 12, 1986, after being read his Miranda warnings, Schwarz told Andrews that the marihuana was his, that he had bought it that morning at 6:00 a.m. at the residence of Fred Earl, Jr., on Hoagerburgh Road and that he had bought marihuana from Earl 2 or 3 times before.
Andrews’ affidavit does not indicate that the informants provided any further description of Fred Earl, Jr., or the property to be searched, but his warrant application states that marihuana would be found at "the residence of Fred Earl Jr. residing at a two story wooden structure, brown in color located at Hoagerburgh Rd Town of Shawangunk, Ulster County New York * * * [which] has a driveway that leads directly to [it]”.
On October 12, 1986, the Shawangunk Town Justice issued a search warrant directing the Sheriffs Department to search the premises described in the warrant application. At about 5:30 p.m., the Sheriffs Department executed the warrant and discovered substantial quantities of marihuana and cocaine.
Later testimony revealed that two Deputy Sheriffs involved in the search were familiar with defendant, Fred D. Earl, and his father, Fred E. Earl, and their adjacent houses on Hoagerburgh Road in Shawangunk; that defendant’s house is a two-story brown wooden structure with a driveway leading to it and a mailbox without a name on it; that Fred E. Earl’s house is a split-level yellow ranch with a mailbox labeled "Earls”; and that on Hoagerburgh Road there are several other two-story brown wooden houses with driveways leading to them.
Defendant was subsequently arrested and indicted by a Grand Jury for the crimes of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]), criminal possession of marihuana in the first degree (Penal Law § 221.30) and criminally using drug paraphernalia in the second degree (two counts) (Penal Law § 220.50 [1], [2]).
According to defendant’s counsel, as of October 20, 1986 the court that had issued the search warrant could not provide him with a copy of the warrant or the application because the Sheriffs Department had not returned the original and only copy, and he did not receive a copy of the papers from the court until October 27, 1986. The People state in an affidavit that "[u]pon information and belief on or about October 15, 1986 the original warrant and application were returned to the issuing court”.
In a pretrial omnibus motion before County Court, defen*841dant moved to, inter alia, suppress the evidence seized on the grounds that the search warrant was based on less than probable cause and failed to describe with sufficient particularity the premises to be searched, that the Sheriffs Department failed to timely return the warrant and the application to the issuing court after execution and that the court failed to keep accurate copies of the papers. County Court summarily denied defendant’s motion on probable cause and failure to return grounds, and, after a hearing on the sufficiency of the description of the premises to be searched, denied the motion on that ground as well.
After the suppression hearings,* defendant pleaded guilty to the crime of criminal possession of a controlled substance in the second degree in full satisfaction of the entire indictment and was sentenced to three-years-to-life imprisonment. This appeal by defendant ensued.
The judgment of conviction should be affirmed. The search warrant application prepared by Andrews referred to statements by Auchmoody and Schwarz which were founded upon their personal knowledge of defendant and his activities and which, in Schwarz’s case, were made against his penal interest. This information, coupled with the results of the subsequent police investigation, provided the Magistrate with the requisite probable cause for the issuance of the search warrant (see, People v Johnson, 66 NY2d 398, 402-403; People v Bigelow, 66 NY2d 417, 423-424). Moreover, we find that the description of the premises to be searched fulfilled the constitutional and statutory requirements (US Const 4th Amend; CPL 690.45). We reject defendant’s argument that the search warrant lacked sufficient particularity to enable a searcher to identify with certainty the target premises because it incorrectly named the occupant Fred Earl, Jr., rather than defendant, Fred D. Earl, and because there were other two-story wooden structures on Hoagerburgh Road. Defendant’s premises adjoined the premises of his father, Fred E. Earl, whose mailbox contained the name "Earls” clearly visible thereon, and whose dwelling house was a split-level yellow ranch house, thus distinguishing it from defendant’s two-story brown house. Applying the "common-sense” test (People v Nieves, 36 NY2d 396, 401), the description contained in the warrant is so worded that the officer executing the warrant could with *842reasonable effort ascertain and identify the place intended to be searched (see, Steele v United States No. 1, 267 US 498, 503). Additionally, Hoagerburgh Road is a rural area with only 15 houses over a stretch of IV2 miles, and since two of the Deputy Sheriffs involved were familiar with defendant and knew where he lived, there was no possibility of error on the officers’ part in executing the search warrant.
Finally, we find no merit to defendant’s argument that delay in returning the warrant to the issuing court or providing a copy thereof to that court requires suppression of evidence obtained. These requirements are ministerial and there is no prejudice to defendant by delay in compliance therewith (see, People v Rhoades, 126 AD2d 774; see also, People v Zimmer, 112 AD2d 500).
Judgment affirmed. Mahoney, P. J., Kane, Weiss, Levine and Mercure, JJ., concur.
County Court held a supplemental hearing on whether the seizure of marihuana from a van on defendant’s premises was proper under the "plain view” doctrine and concluded that it was; defendant does not challenge here that denial of his motion to suppress. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903553/ | Mahoney, P. J.
Appeal from a judgment of the Supreme Court (Lee, Jr., J.), entered January 5, 1987 in Madison County, which granted petitioner’s application in a proceeding pursuant to CPLR article 78, to compel respondents to award petitioner full disability benefits pursuant to General Municipal Law § 207-a.
On April 10, 1981, petitioner, a firefighter for the City of Oneida, Madison County, was injured when he fell from a firetruck he was cleaning. In addition to hurting his leg and hip, petitioner described another injury: "I had extreme feeling of pain that shot down from my ear, down my neck into my shoulder, down my arms into my fingertips.” Petitioner was treated in the emergency room of Oneida City Hospital and advised to see an orthopedic surgeon. Petitioner visited Dr. Joseph Pierz on April 13, 1981. Pierz X-rayed petitioner’s spine and discovered "pre-existing degenerative arthritis”, a weakness in petitioner’s disks. Petitioner returned to Pierz one week later with improved symptoms and Pierz gave him permission to return to work.
In November 1981, petitioner saw Dr. Edward Gaffney. Between the accident in April 1981 and the November 1981 examination, petitioner continued to experience "nagging neck pains”. Petitioner informed Gaffney of these pains, symptoms which Gaffney had never previously heard from defendant during their 12-year doctor-patient relationship. The pain in petitioner’s neck and arms progressively increased from 1982 through 1984 despite Gaffney’s treatments.
*843In May 1985, while trying to load a lawn tractor onto a truck, petitioner injured his neck again, an off-duty incident. When petitioner’s neck pain got worse, Dr. James Brod, Pierz’s medical partner, had petitioner admitted to Oneida City Hospital on August 5, 1985, where petitioner spent 10 days in traction. When petitioner failed to respond to conservative treatment, he was transferred to Upstate Medical Center in Syracuse and came under the care of Dr. Hansen Yuan, an internationally recognized spinal surgeon. After taking a medical history and conducting some tests, Yuan concluded that petitioner had a ruptured disk. Yuan operated on petitioner and repaired the disk. Since the surgery, all parties agree that petitioner is disabled from working as a firefighter.
The City of Oneida hired Dr. George I. Baker to review records from Oneida City Hospital, Pierz, Gaffney, Yuan and Brod, and to examine petitioner. Baker concluded that petitioner had a preexisting degenerative condition in his neck and, further, that the April 1981 fall did not contribute to that condition. On the basis of Baker’s report, the city removed petitioner from its payroll, effective October 30, 1986, and denied petitioner benefits provided by General Municipal Law § 207-a. Petitioner had received full pay since becoming disabled in 1985.
Petitioner brought this CPLR article 78 proceeding alleging that the 1981 on-duty accident was the cause of his disabling injuries and seeking a judgment directing respondents to pay him the benefits provided by General Municipal Law § 207-a. Respondents’ answer, while admitting that petitioner fell while on duty, claimed that any disability was due to the 1985 lawn mower accident. Supreme Court held a hearing without a jury on December 5, 1986.
Respondents called Baker who testified that the 1981 accident was totally unrelated to petitioner’s neck injury, it being his position that petitioner’s disablement was solely the result of the 1985 lawn mower accident. Petitioner called Pierz, Gaffney and Yuan to testify. Their cumulative testimony stated that the 1981 fall caused petitioner’s disabling injuries. Petitioner did not dispute that he had a degenerative spinal disease prior to April 1981 but, through Yuan’s testimony, he argued that it was not the cause of the ruptured disk. Supreme Court concluded that petitioner’s fall in April 1981 during the course of his employment caused the ruptured disk and, accordingly, that petitioner was entitled to a judgment for the relief sought. This appeal by respondents ensued.
*844Respondents’ first contention is that Supreme Court improperly conducted a hearing de novo to decide petitioner’s eligibility for benefits provided by General Municipal Law § 207-a. Citing King v City of Newburgh (84 AD2d 388), respondents argue that it is for the municipality alone to first make the determination as to whether a claimant has been injured and disabled from performing his regular duties and thereby entitled to section 207-a benefits. If the injured city employee disagrees with the employer’s determination, the remedy is review pursuant to CPLR 7803 (3) or (4). Thus, respondents argue that Supreme Court’s trial de novo was error. We disagree.
General Municipal Law § 207-a starts with the assumption that the firefighter has already been found eligible for section 207-a benefits. The first sentence of that section reads: "Any paid fireman which term as used in this section shall mean any paid officer * * * who is injured in the performance of his duties” (General Municipal Law § 207-a [1]). Thus, when the section later refers to "any such injured or sick fireman”, it presupposes a finding of eligibility (see, Matter of Klonowski v Department of Fire, 58 NY2d 398, 405-406). In contrast, General Municipal Law § 207-c specifically intends the employer to determine eligibility of injured police officers. This court in Matter of Schenectady County Sheriff’s Benevolent Assn. v McEvoy (124 AD2d 911) specifically stated that "General Municipal Law §§ 207-a and 207-c are markedly distinguishable * * * Unlike General Municipal Law § 207-a, General Municipal Law § 207-c (1) specifically invests municipalities with discretion to determine employee eligibility” (supra, at 911-912). Therefore, in our view, interpreting General Municipal Law § 207-a (1) to require the employer to be the primary arbiter of eligibility is not supported by the statute’s language. Accordingly, we conclude that King v City of Newburgh (supra) does not control.
In our view, a more appropriate precedent is Matter of Dearmyer v Clark (71 AD2d 807). There, as here, the petitioner received an adverse decision from the respondents concerning his employment status without the benefit of a hearing. Supreme Court, finding that a triable issue of fact existed as to whether a rational basis supported the administrative action, held a trial de novo to resolve the dispute. The Fourth Department approved of this procedure, stating, "A trial de novo was properly held by the court to review the propriety of respondents’ determination” (supra, at 808; see, CPLR 7804 [h]).
*845Here, respondents denied benefits under General Municipal Law § 207-a without a hearing on the basis of Baker’s report. Supreme Court decided that a triable issue of fact existed as to the cause of petitioner’s injury and held a trial de novo. We hold that Supreme Court’s act in holding a trial de novo did not usurp any power allegedly conferred upon respondents to decide eligibility in the first instance (see, Matter of Geremski v Department of Fire, 72 Misc 2d 166, affd 42 AD2d 1050). Accordingly, since respondents did not give petitioner the chance to present his evidence at a hearing, we hold that Supreme Court’s trial was not error.
Next, since this case turned on expert testimony, we cannot fault Supreme Court’s reliance on the testimony of Yuan, an internationally recognized spinal surgeon, in reaching the conclusion that the April 1981 accident was the cause of petitioner’s disabling injury and, therefore, that petitioner was eligible for section 207-a benefits (see, McCall v Town of Middlebury, 52 AD2d 736).
Finally, we hold that Supreme Court did not err in denying admission of Baker’s written report into evidence. Supreme Court explained that Baker’s report was attached to respondents’ answer and that he had read the report and was familiar with its content. Further, Baker testified extensively from his own written report. Accordingly, respondents were unable to show the prejudice necessary for exclusion of the report (see, Forman v Azzara, 23 AD2d 793, affd 16 NY2d 955).
Judgment affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903554/ | Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J), entered December 6, 2011, which, in this personal injury action arising from a slip and fall, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff fell on a backstage staircase that she had been sent to clean off accumulated debris. Although plaintiff testified that there was “poor lighting” on the backstage staircase where she fell, she testified that she fell because the step was uneven or pitched forward. Thus, plaintiff failed to submit sufficient evidence to raise an issue of fact as to whether the alleged poor lighting was a proximate cause of her fall (see Batista v New York City Tr. Auth., 66 AD3d 433, 434 [1st Dept 2009]; Kane v Estia Greek Rest., 4 AD3d 189, 190 [1st Dept 2004]).
Moreover, plaintiffs expert’s opinion that the stairs violated Administrative Code of the City of New York former §§ 27-127 and 27-128, is unavailing. Those sections “merely require that *526the owner of a building maintain and be responsible for its safe condition,” and liability will not be imposed in the absence of a breach of some specific safety provision (Hinton v City of New York, 73 AD3d 407, 408 [1st Dept 2010],.lv denied 15 NY3d 715 [2010] [internal quotation marks omitted]). Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903556/ | Kane, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Warren County) to review a determination of respondent which, inter alia, found petitioner guilty of disciplinary charges under Education Law § 3020-a.
On or about September 9, 1985, petitioner, an elementary school teacher employed by Johnsburg Central School District in Warren County, was charged with several instances of unprofessional conduct. The charges were preferred by respondent, the Board of Education of Johnsburg Central School District (hereinafter the Board). Subsequent to petitioner’s request for a hearing, a Hearing Panel was appointed to hear the charges pursuant to Education Law § 3020-a. Prior to and during the course of the hearing, in response to two motions made by petitioner, the Hearing Panel dismissed several of the charges and certain others were withdrawn by the Board. As a result, five charges remained and, after the final day of the hearing on these charges, the Hearing Panel issued its determination. It found petitioner guilty of 3 of the charges and dismissed the remaining 2. The Hearing Panel recommended that petitioner be reprimanded for her misconduct and that she be suspended from her teaching duties without pay for the fall 1987 term. Petitioner was then notified by the Board that it had adopted the Hearing Panel’s recommendations. Petitioner then commenced the instant CPLR article 78 proceeding which was transferred to this court.
We turn first to the Board’s claim that the Hearing Panel, the State Office of Employee Relations and the State Department of Education were necessary parties to the instant proceeding. CPLR 1001 (a) sets forth the criteria in determining what parties are required to be joined in a proceeding. Under the statute, parties who should be joined are classified into those who ought to be joined if complete relief is to be accorded between those who are parties and those who might be inequitably affected by a judgment in the proceeding (Mat*848ter of Sandor v Nyquist, 45 AD2d 122, 123). Notwithstanding the involvement of the unnamed parties in the instant case in the conduct and administration of the hearing pursuant to their duties under Education Law § 3020-a, these parties were not necessary to a complete resolution of the case and they will not be inequitably affected by any possible judgment (see, Matter of Zubal v Ambach, 103 AD2d 927, 929; Matter of Jerry v Board of Educ., 44 AD2d 198, 205, mod on other grounds 35 NY2d 534). Since an effective judgment could be rendered without these parties, it was not required that they be joined before the proceeding could go forward.
Turning next to petitioner’s claim that the finding of guilt on three of the charges was not supported by substantial evidence, we note that our review is limited and we can neither weigh the evidence on the record nor substitute our judgment for that of the Hearing Panel (see, Matter of Fitzpatrick v Board of Educ., 96 AD2d 557, 558, lv denied 61 NY2d 607). We conclude that here there was "such relevant proof as a reasonable mind [could] accept as adequate” to support the Hearing Panel’s finding of guilt (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). The determination was based primarily on the assessment of the credibility of the witnesses and we cannot substitute our judgment for that of the Hearing Panel in assessing the weight to be accorded to various witnesses’ testimony (see, Altsheler v Board of Educ., 62 NY2d 656, 657; Matter of Adrian v Bd. of Educ., 60 AD2d 840). Therefore, we find that the determination of guilt should be upheld in its entirety.
For its part, the Board contends that the Hearing Panel erred in its dismissal of certain of the charges. Two of the charges were dismissed in the Hearing Panel’s April 1987 determination after the hearing had been concluded. Petitioner was notified of the Board’s acceptance of this determination by a letter dated May 12, 1987. The other charges cited by the Board were dismissed in a decision by the Hearing Panel dated July 15, 1986, in response to petitioner’s second motion to dismiss. The July 15, 1986 dismissal occurred after two days of the hearing had been held, but prior to the final two days of the hearing. Contrary to petitioner’s argument, we do not find the objection to the July 15, 1986 determination to have been untimely. Education Law § 3020-a sets forth the method for appealing a Hearing Panel’s decision: "Either the employee or the employing board may review the findings of the hearing panel either by appeal to the commissioner of education * * * or by a special proceeding under [CPLR art *84978]. The hearing panel’s determination shall be deemed final for the purpose of such proceeding” (Education Law § 3020-a [5]). In our view, the decision of the Hearing Panel was therefore not "final and binding” (CPLR 217) until the conclusion of the entire hearing process. Nevertheless, addressing the merits of the Board’s claim, we find that, as with the other charges, the crucial issue was the credibility of the witnesses and the Hearing Panel’s recommendation discloses that its determination was based on a thorough assessment of the various witnesses’ testimony. It was, therefore, supported by substantial evidence.
We also reject petitioner’s argument that the penalties imposed by the Board were excessive. Upon our review of the record, we cannot say that the sanctions imposed were so disproportionate to the offense in the view of the circumstances that they could be said to shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233; Matter of Katz v Ambach, 99 AD2d 897). For the same reasons, we also reject the Board’s argument that the Hearing Panel should have imposed the harsher sanction of dismissal. However, we do agree with petitioner’s argument that the imposition of two penalties was improper. Education Law § 3020-a (4) provides that the penalty shall consist "of a reprimand, a fine, suspension for a fixed time without pay or dismissal”. Given the wording of the statute, the Hearing Panel was required to choose only one of the penalties (see, Matter of Adrian v Board of Educ., 60 AD2d 840, supra; cf., Matter of Kuhnle v Ambach, 91 AD2d 779, 780). No remittal, however, is necessary (cf., Matter of Adrian v Board of Educ., supra) in view of the fact that petitioner’s suspension has already been effected. Therefore, we find that the penalty of a letter of reprimand should be lifted.
Determination modified, without costs, by annulling so much thereof as imposed the penalty of a letter of reprimand, and, as so modified, confirmed. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903558/ | Mercure, J.
Appeal from an order of the Supreme Court (Ford, J.), entered June 30, 1987 in Albany County, which granted plaintiff’s motion for a default judgment.
This is an action for judgment declaring that plaintiff possesses an easement over defendants’ realty and awarding damages allegedly resulting from defendants’ interference with plaintiffs use thereof. In August 1986 plaintiff moved for default judgment or, in the alternative, for summary judgment for the relief demanded in the complaint, with damages to be ascertained following an inquest. In support of the motion for default judgment, plaintiff alleged that the action was commenced by service of a summons and complaint on or about March 17, 1986; that on or about April 21, 1986, plaintiffs attorney extended defendants’ time to answer until May 2, 1986; that, following an intervening substitution of attorneys for defendants, the answer was served on or about June 18, 1986; that "[o]n or about June 26, 1986 [plaintiffs attorney] spoke with defendants’ attorney and informed him that his answer would be returned as untimely”; that plaintiffs attorney returned the answer to defendants’ attorney nearly seven weeks later, on August 11, 1986, with a letter stating, in part, "Per our telephone conversation of late June, 1986, I am returning herewith your answer in the above-captioned action on the ground that it is untimely and without sufficient explanation for its lateness.”
*852Plaintiff’s motion was granted by Supreme Court upon the ground that defendants did default in serving their answer in this action and that in spite of the oral notification from plaintiff’s attorney that the answer was untimely and would not be accepted, no motion was made on behalf of defendants to excuse their default and/or compel plaintiff to accept their answer. The motion for summary judgment, presumably considered academic, was not addressed. This appeal ensued.
We reverse. Our review of the record constrains us to find that any objection to the late service of the answer was waived and that, accordingly, the motion for default judgment should have been denied. The acts surrounding the supposed rejection of the late answer consisted of plaintiff’s retention of the pleading for eight days, followed by an oral statement that the pleading would be returned as untimely, followed by plaintiff’s retention of the pleading for an additional 45 days before its ultimate return. This will not suffice. Physical retention of a pleading for an extended period of time will almost invariably constitute a waiver of its late service (see, County of Nassau v Cedric Constr. Corp., 100 AD2d 890, 891; Buchner v Pines Hotel, 74 AD2d 969; Dailey v Smiley, 65 AD2d 915; Lucenti v City of Buffalo, 29 AD2d 833, 834). Under appropriate circumstances a finding of rejection has been made despite retention of the pleading (see, Groat v Robinson, 79 AD2d 1081), but no such circumstances are present here. The June 26, 1986 statement of plaintiff’s attorney did not constitute a clear, unequivocal expression of current rejection. At best, it indicated that rejection was to be accomplished in the future and declared that the means of rejection, when it did occur, would be return of the answer. Accordingly, defendants’ belief that they were not required to take any action until the answer was returned was reasonable.
Inasmuch as Supreme Court did not address the motion for summary judgment, we remit the matter to Supreme Court for determination thereof.
Order reversed, on the law and the facts, with costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903559/ | Per Curiam.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506 [b] [1]) to vacate a judgment of respondent Paul E. Cheeseman which validated the designating petition of various respondents for the party positions of delegate and alternate delegate from the 21st Congressional District to the 1988 Republican National Convention.
Respondent State Board of Elections upheld objections filed by respondent Timothy S. Carey and invalidated the designating petition at issue in this proceeding. Respondent candidates (hereinafter the candidates) sought judicial review of the Board’s determination by timely commencing a proceeding to validate their designating petition pursuant to Election Law § 16-102. Upon receiving an affidavit from Carey stating that he was withdrawing his objections to the candidates’ designating petition and consenting to the validation of the petition, Supreme Court granted the candidates’ application and validated their designating petition.
Petitioner, who was neither a party to the candidates’ Election Law proceeding nor someone who had filed objections to their designating petition, then commenced this CPLR article 78 proceeding in the nature of prohibition to vacate Supreme Court’s judgment and reinstate the Board’s determination. Petitioner is himself seeking to become an alternate delegate to the 1988 Republican National Convention from the 21st Congressional District and claims that Supreme Court acted arbitrarily and in excess of jurisdiction in annulling the Board’s determination. Respondent Paul E. Cheeseman, the Supreme Court Justice who decided the matter, has moved to dismiss this article 78 proceeding on the ground that it fails to state a cause of action.
Cheeseman’s motion should be granted and the petition in this article 78 proceeding dismissed. Despite the labels attached to his claim, what petitioner is seeking in this proceeding is to (1) review the propriety of Supreme Court’s ruling in the Election Law validation proceeding commenced by the candidates, and (2) invalidate the candidates’ designating petition. As to the first matter, the proper method to challenge Supreme Court’s ruling is by way of a direct appeal taken by an aggrieved party; collateral review pursuant to a CPLR article 78 proceeding is not an appropriate mechanism for reviewing this judicial ruling (see, CPLR 7801 [2]). Regarding the second matter, we have consistently held that the exclusive remedy for seeking to remove a candidate from the ballot is a proceeding pursuant to the Election Law (Matter of *854Scaringe v Ackerman, 119 AD2d 327, 328-329, affd 68 NY2d 885; Matter of Garrow v Mitchell, 112 AD2d 1104, 1105, lv denied 65 NY2d 607). Having failed to take advantage of the right given to him as an aggrieved candidate to judicially challenge the designating petition at issue herein by way of a proceeding pursuant to Election Law § 16-102, petitioner "cannot avoid the time requirement of the statute by initiating a new and different proceeding having no statutory basis” (Matter of Scaringe v Ackerman, supra, at 329).
Motion granted and petition dismissed, without costs. Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903561/ | Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered November 15, 2011, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
“A defendant who moves for summary judgment in a slip- and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence” (Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [1st Dept 2008]). Upon such showing, the burden shifts to the party opposing the motion “to raise a triable issue of fact as to the creation of the defect or notice thereof’ (Rodriguez v 705-7 E. 179th St. Hous. Dev. Fund Corp., 79 AD3d 518, 519 [1st Dept 2010]).
Plaintiff failed to rebut defendant’s prima facie showing that it did not cause or create the defective condition. Her claim on appeal that the store’s employees created the allegedly dangerous condition by spraying water on produce prior to her accident is speculative, as she testified that she did not know where the water came from and that did not she see any of defendant’s employees prior to her accident (see Goldman v Waldbaum, Inc., 248 AD2d 436, 436-437 [2d Dept 1998], lv denied 92 NY2d 805 [1998]; cf. Granera v 32nd St. 990 Corp., 46 AD3d 750, 751 [2d Dept 2007]).
Nor has plaintiff rebutted defendant’s prima facie showing that it had no actual or constructive notice of the alleged defective condition (see Kershner v Pathmark Stores, 280 AD2d 583, 584 [2d Dept 2001]; Stoerzinger v Big V Supermarkets, 188 AD2d 790 [3d Dept 1992]; cf. Brockman v Cipriani Wall St., 96 AD3d 576, 577 [1st Dept 2012]). The record establishes that defendant did not receive any complaints about the allegedly defective condition before the accident (see Kerson v Waldbaums Supermarket, 284 AD2d 376, 377 [2d Dept 2001]). To constitute *527constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Here, plaintiff testified that she did not see water on the floor prior to her fall and did not know how long it was there.
Plaintiffs affidavit was insufficient to raise a triable issue of fact as to the exact site of the accident, because it conflicts with her deposition testimony that the photo at issue depicted only the general, but not the specific accident location (see Smith v Costco Wholesale Corp., 50 AD3d at 501).
Lastly, plaintiffs claim that, in making its prima facie showing, defendant relied upon inadmissable hearsay was not raised before the motion court, and accordingly, will not be considered on appeal (see e.g. Honique Accessories, Ltd. v S.J. Stile Assoc., Ltd., 67 AD3d 481, 482 [2009]). Were we to review plaintiff’s hearsay argument, we would find it unavailing.
We have considered the parties’ remaining contentions and find them unavailing. Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903562/ | Harvey, J.
Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered May 17, 1985, upon a verdict convicting defendant of the crime of criminal possession of stolen property in the second degree.
In October 1983, defendant and Robert Scott were indicted for criminal possession of stolen property in the first degree. There was testimony that defendant had participated in a series of burglaries in the Albany area. Some of the stolen property had been stored in a rental locker at the U-Haul Storage Center in the City of Albany. Police had entered the rented locker with the permission of Scott, one of the lessees of the locker, and discovered various items of stolen property. Defendant was found guilty by a jury of criminal possession of stolen property in the second degree, a lesser included offense under the indictment. Defendant was sentenced to IV3 to 4 years’ imprisonment. This appeal followed.
Defendant contends that County Court’s charge with respect to accomplice testimony was inadequate. A defendant may not be convicted solely upon the uncorroborated testimony of an accomplice (CPL 60.22 [1]). There must be other evidence which tends to connect the defendant with the commission of the crime (People v Hudson, 51 NY2d 233, 238). The failure to give a proper charge regarding this corroboration requirement can constitute reversible error (see, People v Van Denburg, 107 AD2d 891). Here, it is uncontested that Scott was an accomplice and that he was a key witness against defendant. Review of County Court’s charge reveals that it made clear to the jury that Scott was to be considered an accomplice. The court further stated that defendant could not be convicted of criminal possession of stolen property solely upon the testimony of an accomplice. The jury was instructed that it must find that evidence other than the testimony of Scott tended to connect defendant with the charged offense. It is evident that County Court’s charge was adequate and did not deprive defendant of a fair trial.
Next, defendant argues that the prosecution failed to establish that defendant knowingly possessed the stolen property. We cannot agree. Scott’s testimony clearly established this element and there was sufficient corroborative evidence for the jury to accept Scott’s testimony. Among other things, U-Haul employees testified to observing defendant at the facility, defendant’s personal belongings were found in the locker evidencing his dominion and control over the locker, and an *857individual who had purchased items from defendant testified regarding defendant’s access to the locker.
Defendant’s assertion that County Court erred in allowing testimony of an uncharged burglary to establish defendant’s knowledge and a common scheme has been considered and found unpersuasive (see, Richardson, Evidence § 176, at 145-146 [Prince 10th ed]).
Judgment affirmed. Weiss, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903563/ | Harvey, J.
Appeal from a judgment of the County Court of Sullivan County (Hanofee, J.), rendered December 5, 1985, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
In September 1985, defendant was arrested by the Town of Fallsburg Police Department in Sullivan County and charged with the crimes of burglary in the second degree and petit larceny. Defendant also had other charges pending against him in Sullivan County. Shortly after his arrest, defendant entered into plea negotiations. Defendant agreed to plead guilty to a reduced charge of burglary in the third degree in exchange for the dismissal of other charges pending against him in Sullivan County. The prosecutor further agreed to recommend that defendant, a second felony offender, receive a sentence of 3 to 6 years in prison. As a result of the plea negotiations, defendant executed a waiver of indictment in open court in which he consented to be prosecuted by a superior court information. The plea arrangement was subsequently accepted by County Court and, following defendant’s guilty plea, defendant was sentenced to a prison term of 3 to 6 years. This appeal followed.
Defendant contends that his waiver of indictment was invalid. Although it was once the law of this State that a defendant charged with a capital or otherwise infamous crime could not waive indictment by a Grand Jury (see, Matter of Simonson v Cahn, 27 NY2d 1), that law was changed by an amendment to the State Constitution (see, NY Const, art I, § 6). Article 195 of the CPL sets forth the procedures to be followed for waiver of indictment. CPL 195.10 (1) provides that a defendant may waive indictment and consent to be prosecuted by superior court information when the following conditions are met:
"(a) a local criminal court has held the defendant for the action of a grand jury; and
*858"(b) the defendant is not charged with a class A felony; and
"(c) the district attorney consents to the waiver.”
Defendant argues that the record does not indicate that a local criminal court held him for the action of a Grand Jury. In approving the waiver of indictment, County Court indicated that it was satisfied that the waiver complied with CPL article 195. Further, the fact that the matter had been transferred to County Court is evidence that defendant, in accordance with CPL 180.30 (1), had been held for action by the Grand Jury. Interestingly, defendant has not alleged that he was not held for action by the Grand Jury, but merely seeks to vitiate his waiver based upon a void in the record regarding this matter. However, "judicial proceedings are entitled to a presumption of regularity” (People v Kalakowski, 120 AD2d 763, 765, lv denied 68 NY2d 669), and where, as here, no proof to the contrary is submitted, we will not speculatively conclude otherwise. Accordingly, we find that the waiver of indictment was properly accepted.
Defendant’s remaining contentions have been considered and found to be either unpreserved for appellate review or meritless.
Judgment affirmed. Casey, J. P., Yesawich, Jr., Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903564/ | Weiss, J. P.
Appeal from a judgment of the Supreme Court (Ellison, J.), rendered June 6, 1986 in Tompkins County, upon a verdict convicting defendant of the crimes of sodomy in the first degree (two counts), rape in the first degree (three counts) and attempted rape in the first degree.
Between 8:20 p.m. and 8:30 p.m. on August 17, 1985, a woman was walking in an area known as the "Commons” in the City of Ithaca. A man who called himself Toby approached and walked alongside her for at least two minutes while engaging her in a face-to-face conversation. When they reached De Witt Park, the man grabbed her by the throat, dragged her into a secluded area and repeatedly raped and sodomized her. After binding and gagging her, the assailant left. Glynnis Hart, a passerby, responded to the victim’s call and assisted her. The police, who arrived at the scene within minutes, were given a detailed description of the assailant and his clothing by the victim from which they recognized defendant as a man questioned at 5:00 p.m. that day who had identified himself as Kevin Sheppard. Within minutes, defen*859dant was apprehended a few blocks from the park and taken to the police station where he was placed in an interview room containing a one-way mirror. The victim, accompanied by Hart, viewed defendant through the mirror and immediately identified him as her attacker. Hart also recognized defendant, who she said had asked her for a cigarette in the park. The victim was taken to a hospital emergency room where physical evidence from her person was collected in a "rape kit”.
Defendant was indicted for two counts of sodomy in the first degree, three counts of rape in the first degree, and one count of attempted rape in the first degree. Following a Wade hearing, Supreme Court astutely suppressed the station house identification of defendant as unduly suggestive and violative of the guidelines of the Ithaca Police Department. However, the court found that both women had an independent basis, separate from the station house showup, to identify defendant and permitted in-court trial testimony in which the victim and Hart did identify defendant. In addition, the laboratory report and forensic evidence of blood, semen and hair, all contained in the rape kit, was admitted into evidence over defendant’s objection. Defendant was convicted on all counts and this appeal ensued.
Defendant first argues that the in-court identification was tainted by the impermissibly suggestive police station showup. We disagree. The inadmissible station house showup did not preclude an in-court identification of defendant so long as the victim and Hart had an independent basis for making that identification (see, People v Adams, 53 NY2d 241, 251; People v Charlier, 136 AD2d 862; People v Dobranski, 112 AD2d 541, 542, lv denied 66 NY2d 614). The victim walked and conversed with defendant for several minutes prior to the attack, during which interval it was still light out and she was wearing her glasses. The ensuing attack lasted approximately one hour, giving the victim ample opportunity to view her assailant. Hart also observed defendant’s face in a lighted area of De Witt Park when defendant asked her for a cigarette. In our view, the People clearly established an independent basis for the in-court identification of defendant by both witnesses (see, People v Albert J., 138 AD2d 773; People v Charlier, supra, at 863-864; People v Ferkins, 116 AD2d 760, 763-764, lv denied 67 NY2d 942; People v Dobranski, supra).
Defendant further maintains that the evidence of hair, semen and blood derived from the "rape kit” test was improperly admitted into evidence because the items were not con*860nected to defendant in any meaningful way. The admissibility of such evidence necessarily depends on "an evaluation of how close is the connection between the object and the defendant” (People v Mirenda, 23 NY2d 439, 453; see, People v Demming, 116 AD2d 886, lv denied 67 NY2d 941). While we agree that the connective evidence was inadequate, we find that the error in admitting the test results was essentially harmless (see, People v Crimmins, 36 NY2d 230). There was overwhelming proof of guilt in this case as to both identification and the perpetration of the crimes charged (see, People v Butler, 132 AD2d 771, 772, lv denied 70 NY2d 873). The victim’s explicit testimony was substantiated by Hart, who, only moments after observing defendant in the park, discovered the victim naked, bound and partially gagged, in a hysterical condition. The responding police officer further described the victim as "crying, very upset, almost hysterical”. We perceive little probability that the jury would have acquitted defendant but for this error, which was not of constitutional dimension (see, People v Brown, 115 AD2d 610, lv denied 67 NY2d 940).
Finally, Supreme Court did not err in allowing testimony as to defendant’s use of an alias even though the People failed to provide prior notice of intent to use this evidence at trial (see, People v Berkowitz, 50 NY2d 333, 338, n 1; People v Miller, 123 AD2d 721).
Judgment affirmed. Weiss, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903565/ | Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered November 15, 2011, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
“A defendant who moves for summary judgment in a slip- and-fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence” (Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [1st Dept 2008]). Upon such showing, the burden shifts to the party opposing the motion “to raise a triable issue of fact as to the creation of the defect or notice thereof’ (Rodriguez v 705-7 E. 179th St. Hous. Dev. Fund Corp., 79 AD3d 518, 519 [1st Dept 2010]).
Plaintiff failed to rebut defendant’s prima facie showing that it did not cause or create the defective condition. Her claim on appeal that the store’s employees created the allegedly dangerous condition by spraying water on produce prior to her accident is speculative, as she testified that she did not know where the water came from and that did not she see any of defendant’s employees prior to her accident (see Goldman v Waldbaum, Inc., 248 AD2d 436, 436-437 [2d Dept 1998], lv denied 92 NY2d 805 [1998]; cf. Granera v 32nd St. 990 Corp., 46 AD3d 750, 751 [2d Dept 2007]).
Nor has plaintiff rebutted defendant’s prima facie showing that it had no actual or constructive notice of the alleged defective condition (see Kershner v Pathmark Stores, 280 AD2d 583, 584 [2d Dept 2001]; Stoerzinger v Big V Supermarkets, 188 AD2d 790 [3d Dept 1992]; cf. Brockman v Cipriani Wall St., 96 AD3d 576, 577 [1st Dept 2012]). The record establishes that defendant did not receive any complaints about the allegedly defective condition before the accident (see Kerson v Waldbaums Supermarket, 284 AD2d 376, 377 [2d Dept 2001]). To constitute *527constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Here, plaintiff testified that she did not see water on the floor prior to her fall and did not know how long it was there.
Plaintiffs affidavit was insufficient to raise a triable issue of fact as to the exact site of the accident, because it conflicts with her deposition testimony that the photo at issue depicted only the general, but not the specific accident location (see Smith v Costco Wholesale Corp., 50 AD3d at 501).
Lastly, plaintiffs claim that, in making its prima facie showing, defendant relied upon inadmissable hearsay was not raised before the motion court, and accordingly, will not be considered on appeal (see e.g. Honique Accessories, Ltd. v S.J. Stile Assoc., Ltd., 67 AD3d 481, 482 [2009]). Were we to review plaintiff’s hearsay argument, we would find it unavailing.
We have considered the parties’ remaining contentions and find them unavailing. Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903566/ | Levine, J.
Appeal from a judgment of the Supreme Court (Doran, J.), entered July 17, 1986 in Albany County, upon a verdict rendered in favor of defendants.
Defendant Peter B. Weber (hereinafter Weber) is president and sole shareholder of defendant Rushmore & Weber, Inc. (hereinafter Rushmore & Weber), a small, closely held corporation which sells, rents and services new and used forklift trucks. Rushmore & Weber primarily sells forklifts manufactured by Clark Equipment Company (hereinafter Clark) and is an authorized Clark dealer; Weber is an authorized Clark dealer principal. A number of years ago, Weber became interested in hiring someone with experience in the Clark system who would manage the daily operations of Rushmore & Weber and eventually replace himself as a Clark dealer principal.
Plaintiff had worked with Clark products for nine years and was a sales manager when he met Weber in 1979. After an extended period of negotiations, it was agreed that plaintiff *861would come to work for Rushmore & Weber as its marketing manager. An employment agreement executed by plaintiff and Weber, as president of Rushmore & Weber, provided that plaintiff could be terminated only as follows: "By Company, after showing good cause. 'Good cause’ as used in this subparagraph shall be defined as any willful and continued personal misconduct, action or inaction on the part of [plaintiff] that is damaging or detrimental to the Company’s business.” As part of the same transaction, plaintiff and Weber executed a stock option agreement which gave plaintiff the right to acquire stock in Rushmore & Weber upon certain terms and conditions. This agreement provided that plaintiff, Weber and Rushmore & Weber would execute an attached shareholders’ agreement at the time plaintiff elects to purchase stock. The shareholders’ agreement provided for the repurchasing of plaintiff’s stock upon the termination of his employment with the company.
In January 1982, plaintiff began working for Rushmore & Weber as marketing manager. In September 1982, plaintiff notified Weber in writing of his intention to exercise his first stock option pursuant to their agreement. Thereafter, Rushmore & Weber’s board of directors (hereinafter the board) met and discussed plaintiff’s performance with the company. At that time the board agreed that plaintiff should be advised to seek other employment and that Weber should not sell the stock to plaintiff because Weber would only repurchase it pursuant to the shareholders’ agreement after plaintiff’s employment was terminated. Weber advised plaintiff of the board’s recommendation in October 1982. After plaintiff commenced the present litigation his employment at Rushmore & Weber was terminated. Within two weeks plaintiff had commenced new employment with another Clark dealership.
At trial plaintiff sought to prove that defendants had breached their employment contract and had intentionally interfered with plaintiff’s contractual rights under the stock option agreement. At the close of all evidence, Supreme Court dismissed the cause of action for intentional interference with contractual rights. The jury unanimously found by special verdict that plaintiff was terminated for "good cause” as defined in the employment contract. Plaintiff moved to set aside the verdict as contrary to the weight of the evidence. Supreme Court denied the motion and this appeal by plaintiff ensued.
Plaintiff’s first contention on appeal is that Supreme Court erred in dismissing his cause of action against defendants for *862intentional interference with his contractual rights. The gravamen of this claim is that Rushmore & Weber terminated plaintiffs employment for the purpose of interfering with plaintiffs right to obtain stock pursuant to his stock option agreement with Weber. In our view, Supreme Court properly dismissed this cause of action based upon the undisputed evidence that the employment, stock option and shareholders’ agreements were negotiated together in the same transaction and, hence, constituted a single contract between plaintiff, Weber and Rushmore & Weber (see, 22 NY Jur 2d, Contracts, § 226, at 72-74). Plaintiff himself testified that the employment agreement and the stock option contract had been negotiated as a package deal and that he would not have accepted the position with Rushmore & Weber in the absence of either item. That the parties viewed these agreements as an integrated transaction provides strong support for Supreme Court’s conclusion that the agreements were to be considered as one contract (see, 22 NY Jur 2d, Contracts, § 226, at 74). It follows, therefore, that plaintiffs claim must fail since a party to a contract cannot be held liable for intentional interference with that contract (see, Key Bank v Lake Placid Co., 103 AD2d 19, 28, appeal dismissed 64 NY2d 644).
Plaintiff also contends that the jury’s verdict should have been set aside as against the weight of the credible evidence. In support of this contention, plaintiff notes that defendants had the burden of proving their defense that they terminated plaintiff for good cause (see, Felsen v Sol Cafe Mfg. Corp., 24 NY2d 682, 685). According to plaintiff there was not sufficient evidence to support the jury’s conclusion that plaintiffs conduct while employed by Rushmore & Weber constituted "willful and continued personal misconduct, action or inaction * * * that is damaging or detrimental to the Company’s business”. We note, however, that there was evidence adduced at trial which indicated that plaintiff was unable to gain the respect of the employees and that this had resulted in low morale among the workers; generally displayed poor business judgment and, on at least one occasion, had negotiated a deal which resulted in a net loss to Rushmore & Weber; had incorrectly stated Rushmore & Weber’s policy concerning warranties on used trucks at a sales meeting; and had been charged with driving while intoxicated in a company vehicle he had not been authorized to use and had concealed this incident until it came out in the newspapers and he was confronted by Weber. Based on the foregoing, we cannot say that the jury’s verdict, finding that plaintiff had been dis*863charged for cause as defined in the employment contract, was unsupported by any fair interpretation of the evidence (see, e.g., Kerwin v County of Broome, 134 AD2d 812, 814; Hoynacki v Cummings 127 AD2d 941, 942). Accordingly, the jury verdict may not be disturbed.
We have considered plaintiffs other contentions and find them to be without merit.
Judgment affirmed, with costs. Weiss, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903567/ | Mercure, J.
Appeal from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered November 21, 1986, convicting defendant upon his plea of guilty of two counts of the crime of promoting prostitution in the third degree.
On May 29, 1985, Parole Officer James Contino observed defendant, one of the parolees under his supervision, standing near a restaurant talking to a young lady. Upon inquiry, defendant identified the girl as Julie Monarch. Contino was advised by the Albany City Police on June 26, 1985, that a missing persons report had been filed with respect to Tracy Prue, also known as Julie Monarch. Contino viewed a picture of Prue and identified her as the girl he had seen with defendant on May 29, 1985. On July 1, 1985, after consultation with his supervisor, Contino issued a parole warrant against defendant, based upon the fact that defendant had failed to appear for his scheduled appointments with him on June 19, and 26, 1985, and the information he had received concerning the missing Prue.
Defendant did appear for his July 3, 1985 appointment, at which time Contino executed the parole warrant. A scuffle ensued, causing defendant to be charged with resisting arrest as well. He was thereupon advised of his constitutional rights (see, Miranda v Arizona, 384 US 436). Contino conducted a frisk search and found $885 in cash in defendant’s possession, which he seized. Contino contacted State Police Investigator Edmund Girtler, who was conducting an investigation of Prue’s disappearance. Girtler arrived shortly thereafter and interviewed defendant without again advising him of his Miranda rights. During the course of the interview, defendant asked, "Why should I give up a money-making white pussy?” Additionally, Girtler observed defendant wearing a cameo ring matching the description of a ring belonging to Prue. Contino was advised of this, and the ring was seized.
*864Prior to defendant’s arrest, Charon La Bello, Prue’s mother, filed a missing persons report with the Albany City Police. La Bello and Mary Coumbes, Prue’s friend, went to the Arbor Hill station where they looked through a loose stack of photographs placed on a table for their review, including one of defendant with his name printed on it. The women sat together, and when they came to the picture of defendant, La Bello asked Coumbes whether that was the man she had seen with her daughter. Coumbes answered affirmatively.
Defendant was eventually indicted for one count of promoting prostitution in the second degree, six counts of promoting prostitution in the third degree and one count of coercion in the first degree. Huntley and Wade hearings were held in which defendant sought suppression of (1) his incriminating statement, (2) the $885 and the cameo ring, and (3) the identification by La Bello and Coumbes. After a seven-day hearing, County Court denied defendant’s motion in its entirety. Defendant thereafter entered a plea of guilty to two counts of promoting prostitution in the third degree in full satisfaction of the eight-count indictment. As part of the plea bargain, defendant was sentenced as a second felony offender to 3 to 6 years’ imprisonment on each count, the sentences to run consecutively.
On this appeal, defendant maintains that (1) the incriminating statement was obtained in violation of his right to remain silent and his right to the assistance of counsel, (2) the cameo ring and the $885 in cash were seized from him in violation of his 4th Amendment rights, (3) County Court should have suppressed La Bello’s and Coumbes’ identification of him, (4) he was prejudiced by the People’s withholding of prior statements by suppression hearing witnesses until they had testified at the hearing, and (5) he was prejudiced in preparing his defense by the People’s withholding of the true identify of the woman referred to in the indictment. The contentions are without merit.
Initially, we reject defendant’s contention that County Court erred in refusing to suppress the incriminating statement made to Girtler. Defendant testified that he did not recall Contino advising him of his Miranda rights. Contino testified that he read defendant his Miranda warnings and that defendant understood his rights. Contino’s testimony is supported by that of Parole Officer Edmund Deutsch and Girtler. Deutsch testified that he observed Contino subdue defendant and read defendant his rights. Girtler testified that he asked defendant to verify that Contino had apprised him of his *865rights and that he understood them, and defendant responded in the affirmative. It is apparent that questions of fact existed with respect to whether or when defendant was advised of his Miranda rights. This became a matter of credibility, and County Court was free to credit the testimony of the officers (see, People v Hopkins, 86 AD2d 937, 938, affd 58 NY2d 1079). We concur with County Court’s findings.
Accepting the officers’ testimony, the inculpatory statement was admissible. The evidence indicates that defendant understood his rights and made a voluntary, knowing and intelligent waiver of them. Nor were the warnings invalidated by Contino’s reasonable use of force in effecting the arrest. Defendant was not knocked out, does not appear to have lost his senses and, by his own admission, remained aware of what was going on. The use of force was not intended to coerce a waiver of defendant’s rights, but rather to subdue defendant who resisted being placed in custody. The reasonable use of force in the execution of an arrest does not invalidate Miranda warnings or make statements made thereafter invalid (see, People v Hill, 17 NY2d 185, cert denied 383 US 960, sub nom. Catanzaro v New York, 385 US 875). Nor did the failure of Girtler to reissue Miranda warnings to defendant prior to commencing his interview render defendant’s incriminating statement invalid. Defendant’s initial warnings and waiver thereof had not grown stale; it made no difference that Girtler was employed by a separate law enforcement agency conducting a separate investigation (see, People v Johnson, 49 AD2d 663, affd 40 NY2d 882; see also, People v Crosby, 91 AD2d 20). It is only where the parole officer is the second party to question that additional Miranda warnings have to be given (see, People v Alston, 77 AD2d 906).
Defendant also argues that the cameo ring and the $885 in cash were seized in violation of his constitutional rights because his arrest was a sham designed to aid police efforts in obtaining evidence of a crime. We disagree. The parole warrant was supported by reasonable cause to believe that defendant had violated the conditions of his parole and thus was valid (see, People v Simons, 22 NY2d 533, cert denied 393 US 1107). Defendant had failed to report to his parole officer on two scheduled occasions and had also been observed in the company of Julie Monarch, who Contino subsequently learned to be Tracy Prue, a person recently accused of prostitution. A parole warrant is not invalidated because police have an interest in questioning the parolee or because the facts providing reasonable cause to believe a parole violation exists are *866interwoven with the details of a matter under police investigation (see, People v Frankos, 110 AD2d 713; see also, People v Simons, supra, at 539). Inasmuch as there was a lawful arrest, a search of defendant was authorized (see, United States v Robinson, 414 US 218; see also, People v White, 109 AD2d 859; People v Greenwald, 90 AD2d 668). Additionally, the search of the ring was authorized because it was observed in plain view (see, People v Basilicato, 64 NY2d 103, 115).
Defendant’s contention that the identification by La Bello and Coumbes should be suppressed is similarly unavailing. Pretrial identification is not admissible into evidence if the procedures followed in securing said identification were unduly suggestive (see, People v Adams, 53 NY2d 241). However, the inadmissibility of suggestive pretrial identification will not preclude a witness from identifying a defendant in court where the in-court identification is supported by a sufficient basis for identification (supra, at 251) which predates the suggestive pretrial identification procedures (People v Gaddy, 115 AD2d 658, 659). Police at the Arbor Hill station could have followed safer procedures for securing La Bello’s and Coumbes’ identification of defendant. As set up, the risk for suggestiveness in the identification process was enhanced. However, we agree with the determination of County Court that there was an independent source for an in-court identification. Both women had occasion to observe defendant closely prior to identifying his photograph at the Arbor Hill station. La Bello had observed defendant on two prior occasions, each for approximately 15 minutes, when her daughter had appeared in court on prostitution charges. Coumbes also observed defendant prior to the photo identification, having spent about four hours with him on one occasion (see, People v Ennis, 107 AD2d 707).
We find that defendant’s other allegations of error are meritless or have not been preserved for review. We thus decline to address them.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/108697/ | 409 U.S. 1095
93 S. Ct. 904
34 L. Ed. 2d 679
Betty WELLSv.Edwin EDWARDS et al.
No. 72-621.
Supreme Court of the United States
January 8, 1973
The judgment is affirmed.
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
The Louisiana constitutional provisions, which this Court today upholds against appellant's renewed constitutional attack, provide for the election of the State's Supreme Court Justices from election districts that are established without regard to population. Voters in five districts, composed of varying numbers of parishes, elect one justice each. A sixth district elects two justices. La. Const., Art. VII, § 9. The record before the District Court indicated that there was 'considerable deviation between the population of some of the [election] districts,' 347 F. Supp., at 454,1 and that, therefore, the votes of some qualified voters, depending on the happenstance of residence, were of less value in electing justices than others, cast elsewhere. But the District Court refused even to consider this evidence and, relying on a few isolated sentences in Hadley v. Junior College District, 397 U.S. 50, 90 S. Ct. 791, 28 L. Ed. 2d 45 (1970), concluded that 'the concept of one-man, one-vote apportionment does not apply to the judicial branch of the government.' 347 F. Supp., at 454. Summary judgment was entered against appellant, who had attacked the Louisiana scheme under the Equal Protection Clause of the Fourteenth Amendment.
In Hadley, we held that the one-person, one-vote principle extended to the election of trustees for a consolidated junior college district. In doing so, Mr. Justice Black, writing for the Court, stated broadly that, as a general rule, 'whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election.' 397 U.S., at 56, 90 S. Ct. 791. The District Court in this case sezed upon the phrase 'persons . . . to perform governmental functions,' and concluded that such persons were limited to 'officials who performed legislative or executive type duties.' 347 F. Supp., at 455.2 I find no such limiting import in the phrase. Judges are not private citizens who are sought out by litigious neighbors to pass upon their disputes. They are state officials, vested with state powers and elected (or appointed) to carry out the state government's judicial functions. As such, they most certainly 'perform governmental functions.' Indeed, this Court held precisely that nearly a decade ago, in Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), by invalidating Georgia's county unit system that had been used for counting Democratic Party primary votes for United States Senator, Governor, Statehouse Officers, Justices of the Supreme Court, and Judges of the Court of Appeals. Nowhere did we suggest that the county unit system was any less unconstitutional for the election of judges than for the election of governor. On the contrary, with the most direct language possible, the Court stated (id., at 379-380, 83, S.Ct. 801):
'The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his state, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.'
We have held that a State may dispense with certain elections altogether, see Sailors v. Board of Education, 387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967); cf. Fortson v. Morris, 385 U.S. 231, 87 S. Ct. 446, 17 L. Ed. 2d 330 (1966), and we have suggested that not all persons must be permitted to vote on an issue that may affect only a discernible portion of the public, see Kramer v. Union Free School District, 395 U.S. 621, 632, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969). What I had thought the apportionment decisions at least established is the simple constitutional principle that, subject to narrow exceptions,3 once a State chooses to select officials by popular vote, each qualified voter must be treated with an equal hand and not be subjected to irrational discrimination based on his residence. See Reynold v. Sims, 377 U.S. 533, 554-555, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Nothing could be plainer from Mr. Justice Black's statement in Hadley (397 U.S. 54-55, 90 S. Ct. 791):
1
'[W]hile the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor—these officials are elected by popular vote.
2
'When a court is asked to decide whether a State is required by the Constitution to give each qualified voter the same power in an election open to all, there is no discernible, valid reason why constitutional distinctions should be drawn on the basis of the purpose of the election. If one person's vote is given less weight through unequal apportionment, his right to equal voting participation is impaired just as much when he votes for a school board member as when he votes for a state legislator. While there are differences in the powers of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. It should be remembered that in cases like this one we are asked by voters to insure that they are given equal treatment, and from their perspective the harm from unequal treatment is the same in any election, regardless of the officials selected.'
3
The judgment of the District Court is questionable under a decade of this Court's decisions. It as least warrants plenary review here.
1
The record indicates that in 1970 the election districts ranged in population from 369,485 to 682,072. The two-justice district had a total population of 1,007,449.
2
There is language in other district court opinions to the effect that one-person, one-vote principle does not apply to the judiciary. See, e. g., Holshouser v. Scott, 335 F. Supp. 928 (MDNC 1971), aff'd, 409 U.S. 807, 93 S. Ct. 43, 34, L.Ed.2d 68 (1972); Buchanan v. Rhodes, 249 F. Supp. 860 (ND Ohio), appeal dismissed for want of jurisdiction, 385 U.S. 3, 87 S. Ct. 33, 17 L. Ed. 2d 3 (1966); Stokes v. Fortson, 234 F. Supp. 575 (ND Ga. 1964). See also New York State Assn. of Trial Lawyers v. Rockefeller, 267 F. Supp. 148 (SDNY 1967). The statutory schemes involved in those cases, however, differ materially from the Louisiana provisions at issue here. For example, in Holshouser and Stokes, district Judges were nominated through primaries in districts with varying populations; the judges were elected, however, on a statewide basis that conformed to the one-person, one-vote principle. In this context, the district courts rejected the claim that plaintiffs' primary votes were 'diluted' by the general election. Cf. Sailors v. Board of Education, 387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967); Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L. Ed. 2d 656 (1967). In Buchanan, plaintiffs claimed that the apportionment of trial judges in the State resulted in fewer judges per capita in urban districts than in rural districts. Plaintiffs challenged the apportionment on the ground that it denied them speedy justice, not on the ground that their vote in statewide elections was diluted.
See generally Note, The Equal-Population Principle: Does It Apply To Elected Judges?, 47 Notre Dame L. 316 (1971).
3
For example, in Hadley, Mr. Justice Black conceded the possibility 'that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds . . . might not be required.' 397 U.S., at 56, 90 S. Ct. 791. See Avery v. Midland County, 390 U.S. 474, 483-484, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968). | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/5903569/ | Levine and Mercure, JJ.,
dissent and vote to reverse in a memorandum by Mercure, J. Mercure, J. (dissenting). We respectfully dissent. In our view, claimant’s rather uncertain testimony that she received the decision on or about August 22, 1986 and the date stamp of "AUG 14 1986” on the ALJ decision were, viewing the record as a whole, insufficient to support the Board’s factual determination that the decision was mailed on August 14,1986.
Notwithstanding the clear direction of the Board’s notice of hearing that the case preparation unit of the Department of Labor "[pjroduce a witness with first hand knowledge as to the *868practices and procedures involved in the mailing and filing of [ALJ] decisions”, claimant was the only witness to offer testimony at the hearing. After being told that the decision was dated August 14, 1986, a Thursday, she testified, "Thursday, Okay. I received it that following Friday, I think. Yeah. It was about the following Friday. It was a week later.” Claimant was not asked and therefore had no opportunity to state whether she knew the date upon which the decision arrived at her parents’ home or how long it remained there prior to its delivery to her. She did testify, however, that her father was employed at the Rochester City Zoo, that he would bring her mail to work with him and she would pick it up there. Claimant testified further that there was never any length of time that she did not get her mail. This testimony, as supportive of a finding that the decision was mailed on August 21, 1986 as on August 14, 1986, lacks probative value on the issue of the date of mailing, although, as properly found by the majority, it does establish the fact of mailing.
The ultimate issue, then, is whether, given the fact of mailing, the date stamp on the ALJ decision, by itself, constituted sufficient evidentiary support for the Board’s finding that August 14, 1986 was the date of mailing. We would answer the question in the negative. First, we disagree with the majority’s determination that the sole purpose for proof regarding the practices and procedures involved in mailing ALJ decisions is to establish the presumption of receipt or, conversely, of mailing. In our view, a date stamp that is insufficient to establish that the decision was mailed in the first instance (see, Matter of Gonzalez [Ross], 47 NY2d 922, 923) cannot supply a rational basis for the Board’s finding of mailing on a particular date. In Matter of Lebron (Ross) (72 AD2d 886), this court found that the Board’s determination of untimeliness could not stand absent proof "to indicate when the contested referee’s decision was mailed or delivered to [the claimant]” (supra [emphasis supplied], citing Matter of Gonzalez [Ross], supra). Second, examination of the copy of the ALT decision actually mailed to claimant shows that the mailing and filing date had been stamped on the original decision before it was mailed or filed, evidencing the intention of some unknown person and not memorializing an accomplished fact.
Although our review of factual determinations of administrative agencies is very limited, we should remain mindful that we exercise "a genuine judicial function” and are not to "confirm a determination simply because it was made by such *869an agency” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 181). For these reasons, we would reverse and remit the matter to the Board for further proceedings to consider the merits underlying the claim of entitlement to unemployment insurance benefits. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903572/ | Mahoney, P. J.,
dissents and votes to reverse in a memorandum. Mahoney, P. J. (dissenting). Since it is my view that the evidence offered by the People was insufficient as a matter of law to support a conviction of reckless endangerment in the first degree, I would reverse the conviction and dismiss the indictment.
In order to sustain its burden of proof, the prosecution was required to prove, inter alia, that defendant acted recklessly and that his conduct demonstrated a "depraved indifference to human life” (Penal Law § 120.25). The culpable mental state or recklessness is defined by Penal Law § 15.05 (3): "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”
In the instant case, the action of defendant which created the risk was the firing of the rifle. It is conceded that the bullet did not strike the victim directly, but bounced off the ground and then struck her in the leg. Whether defendant’s conduct created a substantial and unjustifiable risk, thus demonstrating recklessness, depends upon the direction in which the rifle was fired vis-á-vis the positions of people present. The People offered no proof on this point. Firing a weapon in a direction such that there is no reasonable chance that anyone could be hurt would not amount to a "gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]) *874and, thus, would not support a conviction for reckless endangerment (see, People v Richardson, 97 AD2d 693). The majority’s reliance on People v Schoonmaker (103 AD2d 936) is misplaced. There, unlike here, the People offered proof that the defendant fired toward a room of a house where he could reasonably have believed a person to be present.
Even assuming that defendant’s conduct in the instant case was reckless, without any proof of the direction in which the rifle was fired, such conduct hardly rises to the level of a depraved indifference to human life. Depraved indifference to human life refers to a particularly egregious form of wantonness or lack of concern for human life that is equal in blameworthiness to intentional conduct (see, People v Register, 60 NY2d 270, 275, cert denied 446 US 953; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 491). In my view, based on all of the circumstances, defendant’s conduct, even if reckless, did not rise to the level of a depraved indifference to human life. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903573/ | Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered June 11, 2012, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, the motion denied to the extent it sought dismissal of plaintiff’s claim that she suffered “permanent consequential” and “significant limitation” injuries to her knees and lumbar spine, and otherwise affirmed, without costs.
Elaintiff alleges that she sustained serious injuries when, while she was sitting in a restaurant, a car owned and driven by defendants crashed through a window and hit her. The record shows that defendants established prima facie absence of a serious injury to either knee by submitting the affirmed reports of their orthopedist who found full range of motion in both knees, and of their radiologist who found degeneration and absence of acute traumatic injuries (see Dorrian v Cantalicio, 101 AD3d 578 [1st Dept 2012]; Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).
*528In opposition, plaintiff raised a triable issue of fact as to whether she sustained a “significant” or “permanent consequential limitation of use” of her knees. Plaintiff’s evidence shows that she began treatment shortly after the accident and, when months of physical therapy did not help, she opted for surgery, which revealed meniscal tears in both knees. In her most recent examination, her surgeon found 15- to 20-degree limitations in active and passive range of motion testing in the knees with spasms and patellofemoral crepitus, and concluded that there was a “high likelihood” of the need for further treatment, including the possibility of knee replacement surgery (see Perez v Vasquez, 71 AD3d 531 [1st Dept 2010]).
Defendants failed to meet their prima facie burden of showing the absence of a serious injury to plaintiffs lumbar spine. Defendants’ orthopedist did not adequately explain his finding of a significant limitation in forward flexion (see Jackson v Leung, 99 AD3d 489 [1st Dept 2012]), and their neurologist’s conclusion, that the significant restriction plaintiff exhibited while performing a straight-leg raising test in a standing position was voluntary, was not supported by an objective medical explanation (see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734 [2d Dept 2009]). Furthermore, the conclusion of defendants’ radiologist that the lumbar disc herniations reflected in plaintiffs MRI films were “unlikely” related to acute traumatic injury since such findings are “common” in the asymptomatic population is insufficient to establish absence of causation as a matter of law. Because defendants did not meet their prima facie burden as to the lumbar spine, we need not consider plaintiffs opposition as to this part of the body (see Feaster v Boulabat, 77 AD3d 440, 441 [1st Dept 2010]).
Defendants established entitlement to dismissal of plaintiffs 90/180-day injury claim by submitting the portion of plaintiffs deposition testimony that she was confined to bed and home for three to four weeks immediately after the accident (see Bonilla v Abdullah, 90 AD3d 466, 468 [1st Dept 2011], lv dismissed 19 NY3d 885 [2012]). The report of one of plaintiffs orthopedists also indicated that plaintiff returned to work within 90 days of the accident. Plaintiff’s assertion that she could not perform her usual and customary daily activities during the requisite period is unsupported by objective medical evidence (see Mitchell v Calle, 90 AD3d 584, 585 [1st Dept 2011]). Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2962769/ | USCA1 Opinion
United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________ No. 94-1060 ROLAND L. ARMSTRONG AND REILOUS LATNEY, Plaintiffs, Appellants, v. JEFFERSON SMURFIT CORPORATION AND SMURFIT PENSION SERVICES COMPANY, Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Frank H. Freedman, Senior U.S. District Judge] __________________________ ____________________ Before Cyr, Boudin and Stahl, Circuit Judges. ______________ ____________________ David A. Robinson with whom Jay N. Michelman and Michelman Law __________________ _________________ _____________ Offices were on brief for appellants. _______ Michael L. Mulhern, with whom Deborah Gage Haude, Winston & ____________________ ___________________ __________ Strawn, John O. Mirick, and Mirick, O'Connell, DeMaillie & Lougee, ______ _______________ _______________________________________ were on brief for appellees. ____________________ July 22, 1994 ____________________ Stahl, Circuit Judge. In this appeal, plaintiffs- _____________ appellants Roland L. Armstrong and Reilous Latney challenge the district court's dismissal of their action brought pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. 1001 et seq. We affirm. __ ____ I. I. __ STANDARD OF REVIEW AND BACKGROUND STANDARD OF REVIEW AND BACKGROUND _________________________________ Because we are reviewing the grant of a Fed. R. Civ. P. 12(b)(6) motion to dismiss, we will accept the allegations of the complaint as true for purposes of our de __ novo review. See Vartanian v. Monsanto Co., 14 F.3d 697, 700 ____ ___ _________ ____________ (1st Cir. 1994). If, under any theory, these allegations are sufficient to state a claim for which the relief sought can be granted, we will reverse the district court's dismissal of plaintiffs' complaint. See id. ___ ___ Plaintiffs are disabled retirees who participated in an employee welfare benefit plan sponsored by defendant- appellee Jefferson Smurfit Corporation and administered by defendant-appellee Smurfit Pension and Insurance Services Company. In early 1992, defendants made what plaintiffs claim was a "highly unusual" offer of either (1) continuing to participate in the existing retiree group medical insurance program at new 1992 monthly premium costs, or (2) discontinuing participation in the program in exchange for -2- 2 lump sum payments.1 In the course of making this offer, defendants neither informed plaintiffs that the lump sum payments were subject to taxation nor advised plaintiffs to seek tax counsel in making their elections. Plaintiffs elected to receive the lump sum payments. Subsequently, they incurred substantial tax liabilities.2 Plaintiffs allege that defendants stood to gain from plaintiffs' election of the lump sum payments, and that defendants' failure to inform them of possible tax implications was prompted by a desire to encourage such an election. Plaintiffs further contend that they would not have elected to receive the lump sum payments had they been aware of the tax consequences. The theory of their case is that defendants' failure either to inform them that the lump sum payments would be subject to taxation or to advise them to seek tax counsel constituted a breach of defendants' ERISA-prescribed fiduciary duties, see section 404(1)(A) and ___ (B), codified at 29 U.S.C. 1104(a)(1)(A) and (B),3 and ____________________ 1. Plaintiff Armstrong was offered a lump sum of $120,000. Plaintiff Latney was offered a lump sum of $55,000. 2. Plaintiff Armstrong incurred over $37,000 in federal and state tax liabilities. Plaintiff Latney incurred almost $17,000 in federal and state tax liabilities. 3. Section 404(a)(1) directs fiduciaries of ERISA plans to discharge their duties with respect to a plan "solely in the interest of the participants and beneficiaries of the plans." Subsection A of this provision instructs fiduciaries to act "for the exclusive purpose of . . . (i) providing benefits to participants and their beneficiaries; and (ii) defraying -3- 3 entitles them to recover the federal and state taxes they paid on the lump sum payments. At oral argument, plaintiffs' counsel made clear that reimbursement for the taxes paid by plaintiffs -- the remedy requested in plaintiffs' complaint - - is the only remedy sought in this case. The district court rejected plaintiffs' argument on two separate grounds. The court first ruled that plaintiffs' allegations are insufficient to state a claim for breach of fiduciary duty under ERISA. It then held, in the alternative, that ERISA does not permit the remedy plaintiffs are seeking. Accordingly, it granted defendants' motion to dismiss the complaint. This appeal followed. II. II. ___ DISCUSSION DISCUSSION __________ The question of whether plaintiffs' complaint is sufficient to state a claim for breach of fiduciary duty is a close one, given (1) plaintiffs' allegation that defendants intentionally withheld the information, and (2) that the _____________ common law trust principles incorporated into section 404(a) require a fiduciary to disclose material facts affecting the interests of participants and beneficiaries which the ____________________ reasonable expenses of administering the plan." Subsection B of this provision mandates that fiduciaries act "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims." -4- 4 fiduciary knows the participants and beneficiaries do not know, and which such parties need to know for their protection in dealing with third persons. See, e.g., Bixler ___ ____ ______ v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, ___________________________________________ 1300 (3d Cir. 1993) (citing Restatement (Second) of Trusts 173, comment d (1959)). It is, however, a question that we need not answer, for the relief plaintiffs seek is unavailable under ERISA. Plaintiffs primarily frame their claim as one brought pursuant to ERISA section 502(a)(3), codified at 29 U.S.C. 1132(a)(3).4 Under section 502(a)(3), a plan participant or beneficiary can "obtain . . . appropriate equitable relief" to redress violations of ERISA or the terms of a plan. We note that it is not at all clear that this provision empowers plan participants or beneficiaries to sue fiduciaries directly for breach of a fiduciary duty rather than on behalf of the plan. See Massachusetts Mutual Life ___ _________________________ ____________________ 4. In the final paragraph of their appellate brief, plaintiffs raise for the first time a halfhearted alternative argument that the reimbursement they are seeking can be viewed as "benefits due to [them] under the terms of [their] plan," and that they therefore have stated a claim under ERISA section 502(a)(1)(B), codified at 29 U.S.C. 1132(a)(1)(B) (allowing participants and beneficiaries to recover, inter alia, benefits due them under the terms of _____ ____ their ERISA plans). While this argument strikes us as a bit farfetched, given that lump sum payments seem not to have been contemplated by the plan and were offered in lieu of __ ____ __ continued plan participation, we regard it as waived and will not address it on the merits. See FDIC v. World Univ. Inc., ___ ____ ________________ 978 F.2d 10, 13 (1st Cir. 1992) (arguments raised for the first time on appeal ordinarily are deemed waived). -5- 5 Ins. Co. v. Russell, 473 U.S. 134, 151-52 (1985) (Brennan, ________ _______ J., concurring in the judgment) (noting ambiguity in majority opinion as to whether ERISA imposes upon fiduciaries actionable duties beyond those running to the plan itself). Even if we assume arguendo that such a suit is ________ authorized, however, plaintiffs' claim founders because the Supreme Court, after a comprehensive review of the entire statute, clearly has held that the compensatory legal damages they are seeking here do not fall within the "appropriate equitable relief" authorized by ERISA's section 502(a)(3). See Mertens v. Hewitt Assocs., 113 S. Ct. 2063, 2068-72 ___ _______ ______________ (1993). In the face of this recent, on-point Supreme Court decision, plaintiffs presented the district court with two rather weak arguments. First, plaintiffs made much of the fact that they were seeking only "make-whole" damages. What they overlooked, however, is that Mertens precludes make- _______ whole damages which are not equitable in nature. Second, plaintiffs, reading significance into the fact that, unlike the instant action, Mertens involved a claim under section _______ 502(a)(3) against a nonfiduciary, contended that, for several ___ reasons, section 502(a)(3) would allow for the recovery of money damages against fiduciaries. All of these arguments are answered, however, by the fact that the status of the defendant (i.e., fiduciary or nonfiduciary) does not affect the question of whether compensatory legal damages constitute -6- 6 "appropriate equitable relief" under the statute. This is ____ the question answered, in the negative, by the Mertens Court. _______ And, this negative answer compels the conclusion that plaintiffs are precluded from recovering damages for the federal and state tax liabilities they incurred on the lump sum payments.5 III. III. ____ CONCLUSION CONCLUSION __________ For the reasons stated above, we affirm the district court's dismissal of plaintiffs' complaint. Affirmed. Costs to appellees. Affirmed. Costs to appellees. ________ _____ __ _________ ____________________ 5. On appeal, plaintiffs argue for the first time that their damages claim constitutes an equitable claim for "restitution." This argument is highly dubious; the tax payments at issue would seem to be completely distinct from any ill-gotten profits which might properly be made subject to a viable restitution claim. At any rate, because plaintiffs did not present this argument to the district court in the first instance, we regard it as waived. See ___ World Univ., 978 F.2d at 13. ___________ -7- 7 | 01-03-2023 | 09-21-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/5903574/ | Kane, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was an inmate at Green Haven Correctional Facility when, on September 6, 1986, he was served with a misbehavior report charging him with violating a facility rule prohibiting inmates from engaging in sexual acts. A Superintendent’s proceeding was held after which petitioner was found guilty as charged. Upon administrative appeal, the finding of guilt was affirmed by the Commissioner of Correctional Services. Petitioner then commenced this CPLR article 78 proceeding which has been transferred to this court for disposition.
Petitioner claims that the determination is not supported by substantial evidence. We disagree. Although the correction officer who issued the misbehavior report did not testify, a written misbehavior report can constitute substantial evidence to support a determination that an inmate violated a prison disciplinary rule (see, People ex rel. Vega v Smith, 66 NY2d 130). Additionally, there was testimony by another correction officer which, although he did not witness the entire incident, *875tended to support the facts alleged in the misbehavior report. Petitioner offered testimony in opposition. This, however, presented only an issue of credibility for the Hearing Officer to resolve (see, Matter of Jackson v LeFevre, 128 AD2d 1001, 1002; Matter of Witherspoon v LeFevre, 82 AD2d 959, 960, appeal dismissed 54 NY2d 829, lv denied 54 NY2d 606). The misbehavior report here was made out and signed by the correction officer witnessing the incident; it described with specificity the scene witnessed and the rule allegedly violated (see, People ex rel. Vega v Smith, supra, at 140). In such circumstances, the written report and the testimony presented were sufficient to constitute substantial evidence supporting the determination that petitioner violated the disciplinary rule as charged.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903576/ | Harvey, J.
Appeal from an order of the Supreme Court (Walsh, Jr., J.), entered August 27, 1987 in Fulton County, which granted defendant’s motion to dismiss the complaint on the ground that plaintiff had previously released all claims against defendant.
The underlying facts are set forth in this court’s prior decision involving the instant suit (127 AD2d 325), where we held that release-dismissal transactions are not violative of public policy per se and that each case must be examined on a case-by-case basis (supra; see, Newton v Rumery, 480 US —, 107 S Ct 1187). We remitted the case since Supreme Court had treated the motion to dismiss as a motion for summary judgment without giving proper notice to the parties. Upon remittal, an evidentiary hearing was held. After hearing the evidence and carefully scrutinizing the agreement, Supreme Court concluded that it was freely and voluntarily given. Hence, defendant’s motion was granted. This appeal followed.
We affirm. A review of the record reveals that Supreme Court’s conclusion that the release-dismissal agreement was freely and voluntarily given is fully supported by the credible evidence. Plaintiff was represented by counsel at the time of the agreement. The People were prepared to proceed to trial and had three eyewitnesses. The Assistant District Attorney testified that the prospect for a conviction was in his opinion “very good”. The charge against plaintiff was a violation for which no lesser offense could be offered as a bargain. Plaintiff was afforded ample opportunity to discuss the proposed agreement with his attorney. In fact, there was testimony that the agreement was privately discussed by plaintiff and his attorney for up to 30 minutes. He was thus apparently fully apprised of the rights he was waiving and the benefit he was receiving in exchange therefor.
Order affirmed, with costs. Casey, J. P., Yesawich, Jr., Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903577/ | Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered June 11, 2012, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, the motion denied to the extent it sought dismissal of plaintiff’s claim that she suffered “permanent consequential” and “significant limitation” injuries to her knees and lumbar spine, and otherwise affirmed, without costs.
Elaintiff alleges that she sustained serious injuries when, while she was sitting in a restaurant, a car owned and driven by defendants crashed through a window and hit her. The record shows that defendants established prima facie absence of a serious injury to either knee by submitting the affirmed reports of their orthopedist who found full range of motion in both knees, and of their radiologist who found degeneration and absence of acute traumatic injuries (see Dorrian v Cantalicio, 101 AD3d 578 [1st Dept 2012]; Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).
*528In opposition, plaintiff raised a triable issue of fact as to whether she sustained a “significant” or “permanent consequential limitation of use” of her knees. Plaintiff’s evidence shows that she began treatment shortly after the accident and, when months of physical therapy did not help, she opted for surgery, which revealed meniscal tears in both knees. In her most recent examination, her surgeon found 15- to 20-degree limitations in active and passive range of motion testing in the knees with spasms and patellofemoral crepitus, and concluded that there was a “high likelihood” of the need for further treatment, including the possibility of knee replacement surgery (see Perez v Vasquez, 71 AD3d 531 [1st Dept 2010]).
Defendants failed to meet their prima facie burden of showing the absence of a serious injury to plaintiffs lumbar spine. Defendants’ orthopedist did not adequately explain his finding of a significant limitation in forward flexion (see Jackson v Leung, 99 AD3d 489 [1st Dept 2012]), and their neurologist’s conclusion, that the significant restriction plaintiff exhibited while performing a straight-leg raising test in a standing position was voluntary, was not supported by an objective medical explanation (see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734 [2d Dept 2009]). Furthermore, the conclusion of defendants’ radiologist that the lumbar disc herniations reflected in plaintiffs MRI films were “unlikely” related to acute traumatic injury since such findings are “common” in the asymptomatic population is insufficient to establish absence of causation as a matter of law. Because defendants did not meet their prima facie burden as to the lumbar spine, we need not consider plaintiffs opposition as to this part of the body (see Feaster v Boulabat, 77 AD3d 440, 441 [1st Dept 2010]).
Defendants established entitlement to dismissal of plaintiffs 90/180-day injury claim by submitting the portion of plaintiffs deposition testimony that she was confined to bed and home for three to four weeks immediately after the accident (see Bonilla v Abdullah, 90 AD3d 466, 468 [1st Dept 2011], lv dismissed 19 NY3d 885 [2012]). The report of one of plaintiffs orthopedists also indicated that plaintiff returned to work within 90 days of the accident. Plaintiff’s assertion that she could not perform her usual and customary daily activities during the requisite period is unsupported by objective medical evidence (see Mitchell v Calle, 90 AD3d 584, 585 [1st Dept 2011]). Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903578/ | Weiss, J.
Appeal from an order of the Supreme Court (Klein, J.), entered January 21, 1987 in Ulster County, which, inter alia, denied defendant Hartford Fire Insurance Company’s motion for summary judgment.
In May 1980, plaintiffs purchased a one-year homeowner’s insurance policy from defendant Hartford Fire Insurance Company (hereinafter Hartford). The policy was in effect when, on December 17, 1980, the house which plaintiffs rented as their residence was damaged by fire. Thereafter, the owner commenced an action against plaintiffs for the property damage sustained. When Hartford subsequently refused to indemnify plaintiffs, they commenced this declaratory judgment action seeking a declaration that Hartford is required to both defend and indemnify. Finding that the policy afforded plaintiffs coverage, Supreme Court denied Hartford’s motion for summary judgment. This appeal ensued.
We affirm. The subject policy provides general personal liability coverage for property damage as follows:
"COVERAGE E—PERSONAL LIABILITY
"This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.” Hartford disclaims coverage primarily on the basis of exclusionary clause 2 (d):
"This policy does not apply * * *
"2. Under Coverage E—Personal Liability * * *
"d. to property damage to property occupied or used by the Insured or rented to or in the care, custody or control of thé Insured or as to which the Insured is for any purpose exercising physical control.” By its terms, the exclusion appears to eliminate coverage since plaintiffs unquestionably occupied the damaged premises. The exclusion, however, does not pertain where the damage occurs within the scope of clause 4 (d) in the "Supplementary Coverages” portion of the policy, which reads in its entirety as follows: "Property in Control of the Insured: Such insurance as is afforded under Coverage E—Personal Liability, applies to property damage to an insured premises and to house furnishings therein if such property damage arose out of fire, explosion, or smoke or smudge caused by sudden, unusual and faulty operation of any heating or cooking unit. Exclusion 2.d does not apply to this Supplementary Coverage” *879(emphasis supplied). Hartford essentially maintains that supplementary coverage is available only where the damage results from the "sudden, unusual and faulty operation of any heating or cooking unit.” Since the fire here apparently occurred when plaintiffs discarded ash from the wood stove near the outside wall of the house, Hartford concludes that coverage is not available.
Applying the rule of "last antecedent” (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 254), Supreme Court determined that the underscored phrase simply qualifies damage due to "smoke or smudge” and that a fire (or explosion), regardless of origin, is covered. We agree with the court’s determination (see, Martin v Bell, 368 So 2d 600 [Fla]; compare, Client’s Sec. Fund v Grandeau, 129 AD2d 383, 386). An insurance policy should be construed liberally in favor of the insured in full recognition of the underlying objective to provide coverage, not exclude it (see, York v Sterling Ins. Co., 114 AD2d 665, 666, affd 67 NY2d 823). Unquestionably, one of the primary purposes of a homeowner’s policy is to secure coverage against the risk of loss due to an on-premises fire. Here, the "perils” section of the policy specifically extends to damage resulting from "fire or lightning” or an "explosion”. Grammatically, the supplementary clause is ambiguous, for the qualifying phrase can be read as modifying all the preceding nouns, including "fire”, or as simply modifying "smoke or smudge” (see, Martin v Bell, supra, at 602). Given this ambiguity, the clause should be construed in favor of the insured (see, Guardian Life Ins. Co. v Schaefer, 70 NY2d 888, 890; Martin v Bell, supra). Under Hartford’s construction, coverage would exist only in the limited instance where fire or similar damage resulted from a malfunction of a furnace or stove. The more plausible construction is that the qualifying language was intended to differentiate between compensable smoke and soot caused by an "occurrence” (as specified in coverage E, quoted above), and the gradual buildup or damage caused by furnace or cooking fumes, which is not compensable. Nor does this interpretation vitiate exclusionary clause 2 (d), which presumably would limit coverage in a variety of other situations, e.g., water and wind damage, falling trees, vandalism. Accordingly, we agree with Supreme Court that the policy extends coverage in an instance of on-premises fire damage.
Order affirmed, with one bill of costs. Mahoney, P. J., Kane, Weiss, Levine and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903580/ | Yesawich, Jr., J.
Appeal from an order of the Supreme Court (Klein, J.), entered June 8, 1987 in Ulster County, which denied defendant Edward Cooper’s motion for summary judgment dismissing the complaint against him.
Plaintiff and defendant Edward Cooper were drinking with a group of cousins in a pub, operated by defendants Russel Hazen, Sr., and Mar Rus, Inc., when an argument erupted between plaintiff and Cooper. The interaction between them occasioned by the dispute, consisting of pointing and shoving, continued as they proceeded to leave the bar, and when they reached a step leading down to the exit, they fell, each breaking a leg. Plaintiff, in addition to bringing an action *882against the pub’s operators, sought recovery from Cooper based on the premise that Cooper, intentionally or negligently, caused him to fall and suffer injury. Following discovery, Cooper moved for summary judgment dismissing the complaint against him, primarily relying upon plaintiff’s representation in an examination before trial that Cooper did not strike him or cause his fall. Supreme Court denied the motion, essentially finding that material issues of fact existed. We agree.
Summary judgment deprives a litigant of his day in court and thus may only be granted when no genuine, triable issue of fact is presented (Ugarriza v Schmieder, 46 NY2d 471, 474). Here such an issue exists despite plaintiff’s damaging admission, for he also testified that he and Cooper were jostling one another as they were in the process of leaving. And in an affidavit in opposition to the motion for summary judgment, plaintiff further swears that, while he cannot state whether they were in physical contact when the fall occurred, shoving immediately preceded the mishap. Since the material facts bearing on whether Cooper’s conduct contributed to the accident can hardly be said to be uncontroverted, summary judgment was properly denied.
Order affirmed, without costs. Casey, J. P., Yesawich, Jr., Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903581/ | Harvey, J.
Appeal from that part of an order of the Supreme Court (Walsh, Jr., J.), entered August 17, 1987 in Schenectady County, which granted petitioner’s application to sever two grievances contained in a demand for arbitration.
Respondent is the bargaining agent and representative for police officers employed by petitioner. Pursuant to the terms of its collective bargaining agreement with petitioner, respondent filed a demand for arbitration on behalf of two of petitioner’s police officers on May 8, 1987. The demand was filed on behalf of Sergeant J. Hoetker and Patrolman Louis Pardi. Hoetker had filed a grievance based upon Police Chief Richard Nelson’s refusal to remove a derogatory letter which had been placed in Hoetker’s file following his approval of a police officer’s request for personal leave on November 28, 1985. Pardi’s grievance was based upon the denial of his request for eight hours of personal leave on November 23, 1984. November 28, 1985 and November 23, 1984 were dates on which the *883annual Christmas parade was scheduled in the City of Schenectady. Both grievances involved the question of whether personal leave time should be granted during scheduled parade shifts.
Petitioner moved to stay the arbitration of Pardi’s grievance and, alternatively, to sever the two grievances and direct that they proceed before different arbitrators. Respondent cross-petitioned for dismissal of the petition and an order compelling arbitration. Supreme Court denied petitioner’s application to stay Pardi’s grievance, compelled arbitration of that grievance and granted petitioner’s request to sever the two grievances. Respondent appeals.
Respondent contends that Supreme Court exceeded its jurisdiction in ordering severance of the two grievances contained in the demand for arbitration. Matters of procedural arbitrability are for the arbitrator to consider along with the substantive issues involved in the arbitration claim (see, Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380; Matter of Wells Fargo Armored Serv. Corp. [Office & Professional Employees Intl. Union] 97 AD2d 75, 77). Whether the particular procedure falls within the jurisdiction of the courts or the arbitrators depends upon "whether it is in essence a prerequisite to entry into the arbitration process or a procedural prescription for the management of that process” (Matter of County of Rockland [Primiano Constr. Corp.] 51 NY2d 1, 9). It is clear that courts have power to order consolidation of grievances (Matter of Chariot Textiles Corp. [Wannalancit Textile Co.—Kute Kiddies Coats] 18 NY2d 793) and to sever arbitrable causes of action from nonarbitrable causes of action (Brennan v A. G. Becker, Inc., 127 AD2d 951, 952-953; Harris v Iannaccone, 107 AD2d 429, affd 66 NY2d 728). With respect to the court’s power to consolidate arbitration claims, a court is the only practical forum in which to effect a consolidation when arbitration disputes are commenced by separate demands and placed before separate arbitrators. The procedural issue of severance in cases such as Brennan and Harris involved, in essence, a prerequisite to entry into the arbitration process, i.e., whether there was an express and unequivocal agreement to arbitrate the issue.
On this appeal, there is no claim that either of the grievances are nonarbitrable. Where, as here, two grievances are presented to one arbitrator in a joint demand, the arbitrator can address the issues of procedural arbitrability in the management of the arbitration process. In light of the policy that courts should not become involved in the arbitration process *884until the conclusion of the proceeding (see, Susquehanna Val. Cent. School Dist. v Susquehanna Val. Teachers’ Assn., 101 AD2d 933, appeal dismissed 63 NY2d 610) and the fact that the severance issue can be properly addressed by the arbitrator, we conclude that Supreme Court exceeded its power in ordering severance of the grievances.
Order modified, on the law, without costs, by reversing so much thereof as granted petitioner’s application to sever the two grievances contained in the demand for arbitration; petitioner’s application denied in its entirety; and, as so modified, affirmed. Weiss, J. P., Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903583/ | *529Order, Supreme Court, New York County (Carol R. Edmead, J.), entered November 14, 2011, which, insofar as appealed from as limited by the briefs, granted the motion of defendants the Andy Warhol Foundation for the Visual Arts, Inc. and the Andy Warhol Authentication Board, Inc. to dismiss the complaint as against them, unanimously affirmed, without costs.
The covenants not to sue in the letter agreements that plaintiff signed bar his claims for breach of contract and gross or ordinary negligence, to the extent such a cause of action can be gleaned from the pro se pleadings (see e.g. Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823 [1993]). Plaintiffs claims must be dismissed, as defendants’ only duty to plaintiff was that undertaken by the letter agreements. There was no special relationship between the parties that would give rise to a tort claim (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173 [2011]), and as this court previously observed, the market place is the appropriate place to resolve authentication disputes (Thome v Alexander & Louisa Calder Found., 70 AD3d 88 [2009], lv denied 15 NY3d 703 [2010]).
Contrary to the parties’ arguments, neither side has engaged in conduct that warrants the imposition of sanctions. Concur— Friedman, J.P, Sweeny, Renwick, Freedman and Roman, JJ. [Prior Case History: 33 Misc 3d 1221(A), 2011 NY Slip Op 52046(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903584/ | Per Curiam.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506 [b] [1]) to prohibit respondent Donald J. Shanley from pursuing an appeal from an order in a related criminal action.
In October 1987, an indictment was handed up naming petitioners in this proceeding as defendants in a criminal action. Rensselaer County District Attorney James B. Canfield disqualified himself from the case based upon a conflict of interest arising out of his relationship with one of the petitioners. Respondent M. Andrew Dwyer, Jr., Rensselaer County Judge, appointed respondent Donald J. Shanley as Special *886Rensselaer County District Attorney. Dwyer subsequently disqualified himself from the case and Ulster County Judge Francis J. Vogt was appointed as Acting Rensselaer County Judge. Vogt eventually dismissed the indictment without prejudice upon the ground that the indicting Grand Jury had been extended in violation of CPL 190.15. Shanley appealed Vogt’s order to this court, which appeal is currently pending. Petitioners then commenced the instant CPLR article 78 proceeding in this court pursuant to CPLR 506 (b) (1) against Shanley and Dwyer seeking a judgment prohibiting Shanley from appealing Vogt’s order in the criminal action. Dwyer has moved to dismiss the proceeding upon the ground that this court lacks subject matter jurisdiction to hear it.
The proceeding must be dismissed. An article 78 proceeding in the nature of prohibition must be commenced in Supreme Court unless relief is sought against certain Judges, including County Judges, in which case the proceeding shall be commenced in this court (Matter of Nolan v Lungen, 61 NY2d 788, 790; see, CPLR 506 [b] [1]; 7804 [b]). Here, although petitioners have named Dwyer as a respondent, a close review of their petition reveals that they do not seek relief against Dwyer in this proceeding. Consequently, since Dwyer is not an actual respondent, the proceeding must be dismissed for lack of subject matter jurisdiction (see, Matter of Nolan v Lungen, supra).
Moreover, in order to conserve judicial resources and avoid unnecessary delay in the pending appeal in the criminal action, we feel it appropriate in this case to comment on the merits of petitioners’ article 78 proceeding despite our conclusion that the matter should have properly been commenced in Supreme Court (see, Matter of Herald Co. v Roy, 107 AD2d 515, 519, appeal dismissed 65 NY2d 922, lv denied 65 NY2d 610). It is our view that prohibition is not appropriate in this case. Petitioners have an adequate remedy at law in that all of the issues raised in this proceeding can be addressed in the context of the criminal appeal (see, Matter of Dondi v Jones, 40 NY2d 8, 13). In fact, petitioners have pending in the criminal appeal a motion to disqualify Shanley based upon the same grounds as raised in this prohibition proceeding. It appears to us that this proceeding does not furnish a more complete remedy and, in fact, is merely frustrating the orderly administration of justice by way of an unjustified collateral proceeding (see, La Rocca v Lane, 37 NY2d 575, 579, cert denied 424 US 968).
*887Motion granted and petition dismissed, without costs. Kane, J. P., Weiss, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903585/ | — Per Curiam.
The petition in this attorney disciplinary proceeding charges respondent with several acts of professional misconduct including, inter alia, conflict of interest, failure to maintain an escrow account, neglect and deception. Following a hearing, the Referee sustained most of the charges, although portions of charges accusing respondent of dishonesty, fraud, deceit or misrepresentation were rejected. Both petitioner Committee on Professional Standards and respondent now move to confirm in part and disaffirm in part the Referee’s report.
Respondent, an attorney admitted to practice by this court in 1954, maintains an office for the practice of law in the City of Binghamton.
Charge I of the Committee’s petition of charges and specifications accuses respondent of entering into a business transaction with a client in violation of the Code of Professional Responsibility DR 5-104 (A)1 and DR 1-102 (A) (4), (5) and (6).2 In brief, respondent accepted the offer of a client, Raymond B. Norton, near the end of 1978 to purchase an existing mortgage of approximately $49,000 on respondent’s home to help respondent stave off possible foreclosure proceedings. At the time, respondent and Norton enjoyed a wide-ranging and active attorney-client relationship although no written retainer agreement was ever entered into. After the assignment of the mortgage to Norton, which assignment was not recorded by respondent until December 1985, over a year after Norton’s death, respondent followed a very flexible schedule in making payments to Norton on the debt secured by the mortgage. There was no writing memorializing the terms of *888the payment schedule or of Norton’s rights to demand or enforce payment, and respondent’s actual payments did not follow any specified schedule as to amount, due dates, allocation of principal or interest, or applicable interest rate; respondent also took substantial credits against the debt for legal fees earned in representing Norton as plaintiff in an involved breach of trust and conspiracy action and for other out-of-pocket expenses incurred by respondent on Norton’s behalf. Norton was not represented by independent counsel in either the assignment of the mortgage or the establishment of the terms of the debt payments. Under these circumstances, we confirm the Referee’s findings as to this charge and conclude that respondent violated DR 5-104 (A) and DR 1-102 (A) (5), (6). Respondent clearly placed himself in a situation wherein the exercise of his professional judgment on behalf of his client could be affected by his own financial interests. He determined the extent of the ongoing legal services provided on Norton’s behalf, the fees for which would then be deducted from the mortgage debt. In addition, we find that respondent did not fully inform Norton of their differing interests and that Norton did not knowingly consent to this arrangement. We also confirm the Referee’s finding that respondent did not engage in dishonest, fraudulent, or deceitful conduct or misrepresentation in this transaction in violation of DR 1-102 (A) (4).
Charge II accuses respondent of violating the Code of Professional Responsibility DR 9-102 (A) and (B) (3) in that, from 1975 through at least June 23, 1986, he failed to maintain an identifiable bank account for the deposit of clients’ funds, failed to maintain adequate records of such funds and failed to render appropriate accounts to clients regarding their funds. In view of respondent’s admission that he failed to maintain a bank account for clients’ funds and after reviewing the exhibits of client records and accounts in evidence, we confirm the Referee’s conclusion that respondent violated DR 9-102 (A) and (B) (3).
Charge III alleges that respondent violated DR 5-101 (A)3 by continuing to represent the estate of Raymond B. Norton in Broome County Surrogate’s Court in connection with the breach of trust and conspiracy action originally commenced by *889respondent on Norton’s behalf and referred to in charge I. By decision dated December 20, 1985, the Surrogate relieved respondent of his representation of the estate after finding that he was indebted to the estate in the amount of nearly $30,000 (the outstanding mortgage debt involved in charge I), and that legal fees charged by respondent in connection with the action would be credited by him as payments on the debt. The Referee found, and we agree, that the representation of the estate under these circumstances was violative of DR 5-101 (A). We also agree with the Referee’s conclusions that respondent did not make full disclosure of the circumstances surrounding his representation to the executors of the estate and that they did not knowingly consent to this arrangement.
Charge IV accuses respondent of failing to comply with section 806.18 of this court’s rules (Rules of App Div, 3d Dept [22 NYCRR]) which, like DR 9-102 (A) and (B) (3), requires an attorney to maintain an escrow account for client funds and accurate records thereof. For the reasons stated with respect to charge II (supra), we confirm the Referee’s finding sustaining this charge.
Charge V accuses respondent of violating DR 6-101 (A) (3) by neglecting a legal matter entrusted to him by Norton. Specifically, the charge alleges that, during the period from April 1978 through February 1980, respondent made payments on a contract to one Dorothy Lake on behalf of Norton pursuant to the terms of a separation agreement between Norton and his ex-wife. It appears that although the separation agreement specified regular monthly payments, respondent made payments at irregular times and in varying amounts, neglected to credit said payments appropriately to principal and interest, and failed to obtain satisfactory receipts and maintain adequate records with respect to same. The Referee sustained this charge finding that although respondent was following Norton’s wishes in making irregular payments to Lake, this did not absolve him of his duty to act professionally by carrying out the terms of the separation agreement to the best of his ability rather than follow the wishes of his client which were contrary to the terms of the agreement. We agree and confirm the Referee’s finding sustaining this charge.
Charge VI accuses respondent of violating DR 5-103 (B)4 by *890making a personal loan of $550 to Norton while representing him in the breach of trust and conspiracy action referred to in charge I. Respondent admits making the loan to Norton for living expenses after Norton was unable to obtain the moneys elsewhere. Based upon this admission, the Referee sustained this charge and we confirm that finding.
Charges VII, VIII and IX of the petition stem from a loan respondent accepted from a client, one Donald R. Leonard. In July 1980, respondent settled a personal injury lawsuit on behalf of Leonard for $12,500. Respondent charged, and was paid, a fee of $4,162.50 for this representation. He also borrowed $7,000 of the settlement amount from Leonard "for investment at 12% per annum”. No other terms of the loan were memorialized nor was Leonard represented by independent counsel with respect to the loan. Thereafter, respondent, apparently with Leonard’s acquiescence, made irregular payments on the loan at irregular intervals, usually in cash, with no attempt to allocate payments between principal and interest.
Charge VII accuses respondent of violating DR 1-102 (A) (3), (4) and (6)5 and DR 5-101 (A) by involving himself in this loan transaction with Leonard under such circumstances. The Referee concluded that respondent violated DR 1-102 (A) (6) (engaging in "conduct that adversely reflects on his fitness to practice law”) but that the loan from Leonard did not violate the other provisions charged. We agree and confirm the Referee’s finding. At the time the funds were obtained from Leonard, respondent did not make clear to his client that the "investment” of $7,000 was unsecured, that the money would be used by respondent personally as a loan and that respondent was then in financial difficulty. The payments on the loan were made in an irregular and casual manner. At one point respondent credited himself with a payment of $500 for legal services rendered to Leonard’s daughter. On two other occasions, respondent added $500 to his debt as "bonuses” to Leonard for "use of your $7,000”. The addition of these amounts to the loan was reflected in a handwritten note from respondent to Leonard. These unprofessional dealings with a *891client clearly amount to conduct adversely reflecting on respondent’s fitness to practice law. However, because there is no evidence that Leonard did not agree to the method of repayment or that respondent had any intent to defraud Leonard, the Referee correctly found respondent not guilty of violating DR 1-102 (A) (3) and (4). Also, because respondent did not undertake any further legal representation of Leonard after accepting the loan, DR 5-101 (A) is inapplicable to respondent’s conduct.
Charge VIII accuses respondent of violating DR 1-102 (A) (4) and (6) by attempting to mislead and deceive the heirs of Leonard by allegedly falsely stating in a 1986 agreement, which at least three of the heirs signed, that the exact amount still due on the loan was not known. The Referee did not sustain this charge and we confirm his finding. First, because of his poor record keeping, it is unlikely respondent knew the precise amount owed when he drafted the agreement. Second, it seems fairly clear that the agreement was designed more to fix the distribution of respondent’s future payments on the loan rather than determine the exact amount due. Third, respondent shortly thereafter wrote a letter to one of the heirs proposing a sum due which was close to the original $7,000 loaned.
Charge IX accuses respondent of violating DR 5-101 (A) by preparing a petition for letters of administration in the estate of Donald R. Leonard. The petition, which was never presented to Surrogate’s Court, lists respondent as attorney for the estate and lists assets of approximately $7,800 of which approximately $7,000 consisted of money owed by respondent to the estate as a result of the loan which forms the basis of charge VII. Respondent did advise two of the heirs that if a dispute arose concerning the amount owed, he would have "to retire” as attorney for the estate. We confirm the Referee’s finding sustaining this charge. Respondent did not have the consent of his client made after full disclosure that his professional judgment would likely be affected by his own financial interests as a person owing money to the estate.
The charges sustained against respondent demonstrate that over a period of several years he engaged in business transactions with clients which were obviously advantageous to him but which demonstrate a disregard for, and insensitivity to, the various canons of ethics forbidding such dealings which of necessity would involve respondent in readily apparent conflicts of interest. Indeed, respondent’s misconduct continued even after the deaths of both Norton and Leonard when he *892attempted to represent the estates of these clients under circumstances which were clearly improper. Respondent’s poor record keeping and casual treatment of his loan obligations compound his misconduct and lack of professionalism in these matters.
In addition, the evidence establishes that for over 10 years respondent failed to maintain an escrow account for client funds and appurtenant records, as required by both the Code of Professional Responsibility (DR 9-102 [A], [B] [3]) and the rules of this court (22 NYCRR 806.18), neglected a legal matter, and made an improper personal loan to a client.
In mitigation, respondent cites the extensive financial reversals he suffered in the mid-1970’s which, in part, prompted the improper loans; his intention to satisfy his debts to the heirs of Norton and Leonard, the former being secured by a mortgage and the latter reaffirmed before this court at the oral argument of this proceeding; his efforts, including the filing of a petition in bankruptcy, to put his personal finances and law office affairs in proper order; and his past involvement in a wide range of voluntary community activities.
In determining the measure of discipline to be imposed, we have taken into consideration the mitigating circumstances set forth by this 66-year-old respondent and have also considered the fact that he is currently attempting to rebuild his practice and to put behind him the financial difficulties which apparently prompted the ill-advised loan transactions with clients underlying the majority of the charges against him. In addition, we take note that the charges of dishonesty and fraud in regard to these matters have not been sustained.
On the other hand, the misconduct established against respondent is substantial and was of long duration. We also observe that respondent was the subject of an admonition issued by petitioner in 1982.
In order to deter similar misconduct and preserve the reputation of the Bar, we conclude that respondent should be suspended from the practice of law for a period of six months.
Respondent suspended from the practice of law for six months, the date of commencement to be fixed in the order to be entered hereon. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.
. DR 5-104 (A) states: "A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.”
. DR 1-102 states:
"(A) A lawyer shall not * * *
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
. DR 5-101 (A) states: "Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his financial, business, property, or personal interests.”
. DR 5-103 (B) states: "While representing a client in connection with contemplated, or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that a lawyer may advance or *890guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.”
. DR 1-102 (A) (3) states:
"A lawyer shall not * * *
"(3) Engage in illegal conduct involving moral turpitude.” | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903586/ | Mercure, J.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered February 13, 1985, upon a verdict convicting defendant of the crimes of rape in the first degree (three counts), sodomy in the first degree, sexual abuse in the first degree (two counts) and attempted rape in the first degree.
The relevant facts upon which these convictions are based are as follows. On March 31, 1984, a 16-year-old girl was walking to a grocery store when she was abducted and forced into defendant’s car at knifepoint. Over the course of the next several hours, the young girl was repeatedly raped and sodomized. At one point, defendant’s vehicle became stuck in a ditch, causing him to enlist the aid of a local homeowner and two motorists who happened along the road. Eventually, defendant shoved the young girl out of the car and she went to a nearby house for help.
On July 10, 1984, an 18-year-old girl left her sister’s house to use the pay phone across the street. While she was on the phone, defendant grabbed her from behind, told her to be quiet as he had a knife and attempted to force her inside his car. Thereafter, a man and woman pulled up in their car and inquired if everything was alright, at which time the 18-year-old girl managed to break loose. The two individuals followed defendant’s car, obtained his license plate number and provided it to the police. The following day, defendant was taken into custody. He was advised of his Miranda rights and gave a statement to the police admitting that he grabbed the 18-year-old girl from behind, put a bottle opener to her throat and attempted to force her into his car for the purpose of having sex with her.
In August 1984, defendant was indicted in a single 11-count indictment in connection with both the March and July 1984 incidents. Prior to trial, defendant moved to sever counts 1 through 8 of the indictment, stemming from the attack upon the younger girl, from counts 9 through 11, stemming from the incident involving the older girl, and for separate trials. Defendant contended that the incidents were not part of any scheme or common plan and were disassociated in time and place, that the first incident involved far more serious charges and that he confessed to part of the second incident but denied involvement in the first incident. After a denial of the motion, a trial ensued resulting in defendant’s conviction and the imposition of consecutive indeterminate prison sentences of 12 Vi years to 25 years and 7 Vi years to 15 years. Defendant *894contends that County Court erred in denying his motion for a severance.
We disagree. In the instant case, the crimes charged in the indictment were "the same or similar in law” (CPL 200.20 [2] [c]) and, consequently, were properly joinable (see, People v Jenkins, 50 NY2d 981; People v Mack, 111 AD2d 186, 188). When the crimes charged in the indictment are defined by the same or similar statutory provisions, applications for severance are addressed to the trial court’s sound discretion pursuant to CPL 200.20 (3) (People v Lane, 56 NY2d 1, 7). We are not persuaded that any of defendant’s contentions warrant severance " 'in the interest of justice and for good cause shown’ ” (supra, at 7).
Next, we find nothing in the record supportive of the conclusion that defendant suffered actual prejudice. The proof with respect to each incident was overwhelming and there was no substantial difference in the quantum of proof at trial for the different crimes. Both victims had the opportunity to observe defendant, positively identified him in a lineup and, unequivocally and without hesitation, identified him during trial. Moreover, the three men who assisted defendant with his car on the night of the March 1984 incident and the two individuals who observed the July 1984 incident all identified defendant in a lineup and in court. Under these circumstances "the possibility that the jury might aggregate the evidence relating to each incident has not been shown” (People v Hoke, 96 AD2d 677; see, People v Gilliam, 112 AD2d 475, lv denied 66 NY2d 919; People v Tanner, 103 AD2d 952). Proof of each crime was presented separately and clearly and was easily discernible and segregable in the jury’s mind. Finally, the jury was instructed by County Court that they could not consider any evidence with respect to the first incident while deliberating on the later one, to avoid the possibility of any prejudice to defendant. We may presume that this instruction was followed (see, Opper v United States, 348 US 84, 95).
We cannot say that County Court abused its discretion in denying defendant’s severance motion upon the record before us. Accordingly, the judgment of conviction should be affirmed.
Judgment affirmed. Mahoney, P. J., Kane, Weiss, Levine and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903589/ | Casey, J.
Appeal from a judgment of the County Court of Saratoga County (Williams, J.), rendered November 4, 1985, upon a verdict convicting defendant of the crimes of sodomy in the first degree (26 counts) and sexual abuse in the first degree.
The crimes of which defendant was convicted involved his adolescent daughter and were alleged to have occurred on a weekly basis from September 1984 until March 1985. According to the testimony of the victim, defendant threatened to beat her with his belt if she told anyone about the incidents. Eventually, she told a high school guidance counselor and defendant was indicted. A physical examination of the victim, conducted approximately a month after the last incident of anal sodomy, revealed no evidence of such crime. However, the examining physician stated that such a finding was not inconsistent with sodomy unless the sodomy also involved physical trauma. The single count of sexual abuse was originally alleged to have occurred in September 1984; this date was changed by a bill of particulars to September 1983. After trial defendant was convicted of all counts as charged and sentenced to an indeterminate term of imprisonment of 7 to 21 years for each sodomy count and 2 Vs to 7 years for sexual abuse, all sentences to run concurrently.
On this appeal, defendant argues that his guilt was not established beyond a reasonable doubt under the two-part test required by People v Bleakley (69 NY2d 490). In our view, the verdicts are supported by legally sufficient evidence and are not against the weight of the evidence. The weight of the *897evidence turns on the credibility of each witness’s testimony. In this case, the jury fully credited the victim, whose testimony demonstrated the complete commission of the crimes charged. Great deference should be accorded the jury’s determination in this regard (see, People v Harris, 97 AD2d 594, 595). Implicitly, the jury rejected defendant’s contention that he merely engaged in father-daughter conversations with the victim in his bedroom. The testimony of the examining physician is not inconsistent with the verdicts where the crimes were not physically traumatic and the last crime occurred a month before the physical examination. We further find the evidence legally sufficient, since a rational person crediting the victim’s testimony would conclude that defendant committed the crimes charged.
Defendant’s contention of failure of proof in regard to "forcible compulsion” is meritless. Implicit threats of physical injury as related by the victim are sufficient to establish the compulsion element (People v Sweeter, 125 AD2d 841, lv denied 69 NY2d 750). Defendant’s parental status and probable superior position provided an implied threat (see, Penal Law § 130.00 [8]; People v Benjamin R., 103 AD2d 663).
For the first time on this appeal, defendant urges that the indictment violated CPL 200.30 (1) and 200.50 (6). This issue has not been preserved for our review (see, People v Iannone, 45 NY2d 589, 600; People v Di Noia, 105 AD2d 799, 800, lv denied sub nom. People v Rapetti, 64 NY2d 763, cert denied 471 US 1022). In this regard, we find that the indictment should not be dismissed in the interest of justice. Defendant’s crimes were alleged to have been committed on a stated weekly basis in separate counts. The rule of People v Keindl (68 NY2d 410), on which defendant mistakenly relies, was not violated.
We have examined defendant’s other alleged errors and find them untenable. The judgment of conviction should be affirmed.
Judgment affirmed. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903591/ | Yesawich, Jr., J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.
On March 12, 1986, from a watchtower at Clinton Correctional Facility, Correction Officer R. La Pierre saw petitioner, an inmate in the north yard, shove another inmate in the neck and back area; the latter then slumped to the ground. The officer, using binoculars, then identified petitioner as the attacker. Further investigation disclosed that the victim had been stabbed. An inmate misbehavior report was filed and a Superintendent’s hearing was held, during which one of the witnesses petitioner asked to be called was not made available. As a consequence, the Hearing Officer’s determination in that proceeding was ultimately annulled and Supreme Court remitted the matter for a new hearing.
The rehearing, held October 13, 1986, resulted in a finding *900that petitioner was guilty of the charged violations, assault and committing a Penal Law offense. Petitioner’s administrative appeal, though timely, was based on the sole ground that the evidence was insufficient. A departmental review board acting on behalf of respondent Commissioner of Correctional Services affirmed the Hearing Officer’s determination. Well after the 30-day period for doing so and several days after the appeal decision had been issued, the Commissioner received a supplemental appeal from petitioner wherein he sought to have a number of due process arguments considered. He then brought this CPLR article 78 proceeding asserting that substantial evidence to support the disciplinary determination was lacking and that the various procedural errors adverted to for the first time in his supplemental appeal vitiated his hearing.
Given that La Pierre testified, the contention that substantial evidence is lacking is completely meritless (see, People ex rel. Vega v Smith, 66 NY2d 130, 140). As for the conflict between the testimony of La Pierre and petitioner’s witness, such credibility issues are for the Hearing Officer to resolve (see, Matter of Burgos v Coughlin, 108 AD2d 194, 197, lv denied 66 NY2d 603).
Petitioner’s supplemental appeal was not timely (see, 7 NYCRR 254.8) and for that reason alone the points raised therein need not be considered (see, Matter of Price v Coughlin, 116 AD2d 898, 900). Nevertheless, in the interest of justice, we deem it expedient to entertain petitioner’s due process claims to the extent that they stem from his difficulty speaking and understanding English. So circumscribed, petitioner’s arguments are that he should have been furnished a copy of the inmate’s rule book and the notice of the misbehavior report in Chinese, that he did not waive employee assistance, and that a translator should have been provided to assist with his administrative appeal.
Due process may require a translated rule book for an inmate who understands no English at all, for a fundamental element of due process is notice (see, Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314; see also, Correction Law § 138 [1]). But here a reading of the transcripts of both hearings indicates that while petitioner prefers, and is more comfortable, speaking Chinese, he is sufficiently well versed in English to enable him to have comprehended the charges against him and to understand and knowledgeably participate in the hearings themselves. Beyond that, we note that he was provided with a translator at each hearing, that *901the quality of the translation was not objected to, that the need for the translator’s services was minimal at best, and further, that he received copies of the misbehavior report in both English and Chinese.
With respect to whether petitioner waived employee assistance, Correction Officer George Rodriguez’s testimony is dis-positive. He stated that petitioner identified three witnesses to be contacted and declared that he desired an interpreter, but refused to sign the assistant selection form despite Rodriguez’s apparently scrupulous efforts to explain the form to him; this reluctance to sign may well have emanated from petitioner’s purported difficulty with English. In any event, since it appears that during the course of the hearing petitioner was asked, through the interpreter, if he required assistance in presenting his case and did not assert any such need, we are of the view that the right to employee assistance was knowingly and intelligently waived (see, Matter of Burke v Coughlin, 97 AD2d 862, 863).
There being no constitutional right to an administrative appeal (Matter of Amato v Ward, 41 NY2d 469, 473), petitioner’s contention that a Chinese-speaking assistant should have been provided to aid petitioner with that appeal is untenable. Moreover, petitioner’s papers before this court demonstrate ample ability on his part to press an appeal on his own.
Determination confirmed, and petition dismissed, without costs. Casey, J. P., Yesawich, Jr., Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903592/ | Judgment, Supreme Court, Bronx County (Julia Rodriguez, J.), entered August 16, 2011, upon a jury verdict, in plaintiffs’ favor, unanimously affirmed, without costs. Order, same court and Justice, entered January 10, 2012, which denied defendants’ motion to set aside the verdict or order a new trial, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Although the court should have given a proximate cause charge, defendants failed to preserve their argument that the trial court erred in declining to charge the jury on proximate cause and to include a jury interrogatory whether the accident was a substantial factor in causing plaintiffs’ injuries, since they neither raised a contemporaneous objection to the court’s denial of their requests therefor nor articulated a cognizable objection after the charge was given (see CPLR 4110-b; Kroupova v Hill, 242 AD2d 218, 220 [1st Dept 1997], lv dismissed in part, *530denied in part 92 NY2d 1013 [1998]). Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4557998/ | IN THE
COURT OF APPEALS
SECOND APPELLATE DISTRICT OF TEXAS
AT FORT WORTH
___________________________
No. 02-20-00067-CV
___________________________
NORTHWEST INDEPENDENT SCHOOL DISTRICT, Appellant
V.
K.R. AND B.R., INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF
C.R., A MINOR CHILD, Appellees
On Appeal from the 153rd District Court
Tarrant County, Texas
Trial Court No. 153-315355-20
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
K.R. and B.R., Individually and as Parents and Next Friends of C.R., a minor
child and student, filed suit challenging Northwest Independent School District’s
assignment of C.R. to an alternative school and its dismissal of her from the drill team
after what was alleged to be marijuana was found in her car in a high school parking
lot. In this accelerated appeal,1 Northwest ISD complains of the denial of its plea to
the jurisdiction. Because the disciplinary decision is not appealable and the
constitutional claims are not viable, the trial court lacked jurisdiction to hear the case.
Therefore, we reverse the denial of Northwest ISD’s plea to the jurisdiction and
render judgment dismissing Parents’ claims.
II. BACKGROUND
On February 14, 2020, a canine-assisted search team found a substance alleged
to be marijuana in C.R.’s car, which was located in the parking lot of Eaton High
School, a part of Northwest ISD. C.R. contends that she was not aware of the
presence of the drug and had no intent to bring marijuana onto the campus.2 Rather,
she alleges that the vehicle in which it was found had not been cleaned since it was
purchased from an individual two months prior to the search and that “the most likely
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 28.1.
2
C.R. also contends that she took a drug test on February 15, and the results
were negative. She attached a copy of the test results to her pleadings.
2
explanation for this material being under a back seat of the vehicle was that it was
there when they purchased it.”
Northwest ISD adheres to a “zero tolerance” policy. As a result, C.R. was
assigned to nine weeks in Northwest ISD’s Disciplinary Alternative Education
Program (DAEP), she lost her place on the school drill team, her access to
communication accounts as a drill team officer was revoked for the remainder of the
year, and she was deemed ineligible to try out for a position on the drill team for the
2020–2021 school year. Placement in DAEP requires that students serve an out-of-
school suspension for three days before reporting to the program. C.R. served the
suspension on February 14, 17, and 18. On February 18, 2020, Parents submitted a
level one appeal of the DAEP placement.
C.R. was to report for a meeting at DAEP on February 20, 2020. Instead,
Parents filed suit seeking a temporary restraining order and temporary injunction on
the basis that Northwest ISD unconstitutionally applied their disciplinary policies by
not considering certain mitigating factors, such as lack of intent and the student’s
disciplinary history, when making the decision to place C.R. in DAEP. Parents
sought to enjoin Northwest ISD and its agents and employees from: (1) requiring
C.R. to attend DAEP; (2) enforcing any policies which would exclude C.R. from the
drill team for the 2019–2020 school year; (3) enforcing any policies which would
exclude C.R. from participating in tryouts for the drill team for the 2020–2021 school
year; and (4) destroying any evidence found in C.R.’s vehicle. Parents claimed that not
3
granting injunctive relief would cause irreparable harm because Northwest ISD’s
actions and policies violated the Texas Constitution by depriving C.R. of rights
including freedom of speech, freedom of association, and procedural and substantive
due process.
Northwest ISD filed a plea to the jurisdiction and response to the request for a
temporary restraining order. In addition to arguing why injunctive relief was
inappropriate, Northwest ISD contended that the trial court did not have jurisdiction
because (1) Parents could not appeal disciplinary decisions pursuant to Chapter 37 of
the Texas Education Code, and (2) Parents failed to plead constitutionally viable
causes of action.
The trial court granted Parents’ temporary restraining order and entered an
order prohibiting Northwest ISD from (1) requiring C.R. to attend DAEP rather than
Eaton High School; (2) enforcing any policies so as to exclude C.R. from participating
in drill team during the 2019–2020 school year; and (3) destroying any evidence found
in C.R.’s vehicle which formed a basis of Northwest ISD’s disciplinary actions against
her. In the same order, the trial court noted that the court had considered Northwest
ISD’s plea to the jurisdiction and concluded that it “does have jurisdiction to consider
whether minor [] C.R.’s constitutional rights have been violated.” Therefore, the plea
to the jurisdiction was denied. This appeal followed.3
3
After submission to this court, Northwest ISD’s counsel filed a letter stating
that its Board of Trustees had heard the level three appeal. “Following presentations
4
III. DISCUSSION
In three issues on appeal, Northwest ISD contends that the trial court erred in
denying its plea to the jurisdiction because the trial court lacked subject-matter
jurisdiction over the alleged violations of the Texas Constitution and student
disciplinary decisions. Parents respond that they “sought protection from the court
system” to prevent the school district from violating its own policies as well as the
Education Code. In addition, Parents state that they are permitted to seek judicial
relief because Northwest ISD violated their constitutional rights. However, if the
order denying the plea to the jurisdiction is reversed, they request the opportunity to
replead.
A. Standard of Review
A trial court’s ability to hear a case lies in its subject-matter jurisdiction. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). “A plea to the jurisdiction is a
dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction.”
Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (citing Bland, 34 S.W.3d at 554).
A plea to the jurisdiction may be used to assert governmental immunity and defeat a
by the [Parents], the District’s administration, and Board deliberations,” the Board
voted to modify the “Level Two Decision” and allow C.R. to try out for the 2020–
2021 drill team. However, if she makes the drill team, C.R. may only fully participate
in drill team activities after February 14, 2021. In addition, according to the letter,
C.R. has successfully completed her DAEP assignment and will return to Eaton High
School campus in the fall. While it is arguable that any issue regarding the DAEP
assignment is moot, we will address the assignment because counsel’s letter is not part
of the appellate record. See Tex. R. App. P. 34.1.
5
court’s subject-matter jurisdiction. Id. A trial court’s ruling on a plea to the
jurisdiction is reviewed de novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex.
2015).
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, just as the trial court must do. Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland, 34 S.W.3d at 555. If the evidence
creates a fact question on the jurisdictional issue, then the trial court cannot grant the
plea to the jurisdiction, and the factfinder will resolve the question. Miranda,
133 S.W.3d at 227–28. But if the relevant evidence is undisputed or fails to raise a
fact question on the jurisdictional issue, the trial court rules on the plea as a matter of
law. Id. at 228. The standard mirrors our review of summary judgments, where we
take as true all evidence favorable to the non-movant, indulging every reasonable
inference and resolving any doubts in the non-movant’s favor. City of El Paso v.
Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).
B. Applicable Law
Chapter 37 of the Texas Education Code establishes the disciplinary
consequences for specific conduct and the procedural due process to which any
student punished under the chapter is entitled. Aledo Indep. Sch. Dist. v. Reese,
987 S.W.2d 953, 956 (Tex. App.—Fort Worth 1999, pet. denied). A student can be
placed in DAEP, which is a disciplinary option without expulsion, if the student
6
possesses, uses, or is under the influence of an illegal controlled substance or
dangerous drug as those terms are used in the Health and Safety Code. Stephens v.
Trinity Indep. Sch. Dist., No. 12-12-00094-CV, 2012 WL 5289346, at *2 (Tex. App.—
Tyler Oct. 24, 2012, no pet.) (mem. op.).
The Texas Education Code provides for notice and various hearings and
appeals. See Tex. Educ. Code Ann. § 37.009(a)–(b). “If school district policy allows a
student to appeal to the board of trustees or the board’s designee a decision of the
campus behavior coordinator or other appropriate administrator, . . . the decision of
the board or the board’s designee is final and may not be appealed.” Id. § 37.009(a).
If a student’s placement in DAEP is to extend beyond sixty days or the end of the
next grading period, whichever is earlier, “a student’s parent or guardian is entitled to
notice of and an opportunity to participate in a proceeding before the board of
trustees of the school district or the board’s designee, as provided by policy of the
board of trustees of the district.” Id. § 37.009(b). Any decision of the board or the
board’s designee under this subsection is also “final and may not be appealed.” Id.
Even if there is no jurisdiction to review complaints arising out of the statutory
rights in Chapter 37 of the Texas Education Code, an appellate court has jurisdiction
to determine whether the complained of action violates the student’s constitutional
rights. Stephens, 2012 WL 5289346, at *3. Suits for injunctive relief may be
maintained against governmental entities to remedy violations of the Texas
Constitution. City of Elsa v. M.A.L, 226 S.W.3d 390, 392 (Tex. 2007) (citing City of
7
Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995)). But for a court to have
jurisdiction of constitutional claims against a governmental entity, the constitutional
claims must be “viable.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011).
This means that the claims “must be properly pleaded in order to be maintained, not
that such claims must be viable on their merits to negate immunity.” Patel v. Tex. Dep’t
of Licensing & Reg., 469 S.W.3d 69, 77 (Tex. 2015). While sovereign immunity does
not bar a suit to vindicate constitutional rights, immunity from suit is not waived if the
constitutional claims are facially invalid. Klumb v. Houston Mun. Emps. Pension Sys.,
458 S.W.3d 1, 13 (Tex. 2015).
C. Application of Law to Facts
In their pleadings, Parents4 state that they are “pursuing a grievance process
within [Northwest] ISD, but by the time that process concludes, C.R. will have been
deprived of her Constitutionally-protected liberty and property interests without due
process.” At the time the suit was filed, a level one appeal had already been
submitted. Since the filing of the suit, level two and three appeals have occurred.
In addition to pursuing the grievance process, Parents allege that the
disciplinary actions taken by Northwest ISD implicate various constitutional rights.
First, they claim that Northwest ISD violated C.R.’s “right to free speech and freedom
of association, as secured by Article I, Section 8 of the Texas Constitution” by
4
We note, as did Northwest ISD in its brief, that the pleadings assert certain
claims on behalf of “Plaintiffs” collectively.
8
“depriving her of access to the ability to contact other drill team members or to
participate with others in planned events as a drill team officer.” Second, they allege
that Northwest ISD violated C.R.’s “rights to procedural and substantive due process,
as secured by Article I, Section 19 of the Texas Constitution” by “failing and refusing
to take into account mitigating factors, including but not limited to lack of intent, and
by failing to provide appropriate due process before imposing the discipline of
assignment to DAEP.” With regard to their second constitutional claim, Parents
further state that Northwest ISD “impinged, deprived, and/or improperly
diminished” Parents’ and C.R.’s (1) liberty interest in attending C.R.’s customary high
school and in participating in extracurricular drill team activities and her normal
classes; (2) liberty interest in C.R.’s good name and reputation; (3) property right in
their monetary investment in drill team membership and participation; and
(4) property interest in Northwest ISD’s policies and procedures as set forth in the
student handbook.
1. Education Code Claims
Because C.R. was assigned to DAEP, Section 37.009 of the Texas Education
Code governs. See Tex. Educ. Code Ann. § 37.009. The section states that a
disciplinary board’s decisions are final and cannot be appealed. See id. § 37.009 (a), (b).
“Texas courts have interpreted this section to mean just what it says—district and
appellate courts have no jurisdiction to review the decision to place a student in
DAEP.” Stephens, 2012 WL 5289346, at *2. We agree and hold that the trial court
9
had no jurisdiction to consider C.R.’s claims as they relate to Northwest ISD’s
decision to place C.R. in DAEP. See Flour Bluff Indep. Sch. Dist. v. R.S., No. 13-05-623-
CV, 2006 WL 949968, at *2 (Tex. App.—Corpus Christi Apr. 13, 2006, no pet.)
(mem. op.).
2. Constitutional Claims
a. Free Speech and Freedom of Association
To support their claims of violation of their right to free speech and freedom
of association, Parents complain of C.R.’s inability to participate in certain drill team
activities. Neither Parents nor C.R. makes any factual allegations that C.R. was
engaged in public speech or was denied the ability to associate with members of the
drill team.
The Texas Constitution provides in part that “[e]very person shall be at liberty
to speak, write or publish his opinions on any subject, being responsible for the abuse
of that privilege.” Tex. Const. art. I, § 8. The Texas Constitution provides greater
rights of free expression than its federal counterpart. Davenport v. Garcia, 834 S.W.2d
4, 10 (Tex. 1992). For speech to be protected, it must address a matter of public
concern. Alcorn v. Vaksman, 877 S.W.2d 390, 401–02 (Tex. App.—Houston [1st
Dist.] 1994, writ denied). Similarly, freedom of association for the purpose of
advancing ideas and airing grievances is a fundamental liberty guaranteed by the First
Amendment. In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex.
1998).
10
However, students do not possess a constitutionally-protected interest in their
participation in extracurricular activities. Spring Branch I.S.D. v. Stamos, 695 S.W.2d
556, 561 (Tex. 1985). More particularly, participation in drill team is not a First
Amendment right. Flour Bluff, 2006 WL 949968, at *3. In light of the fact that C.R.
does not have a right to drill team participation, her association with the team does
not advance her constitutional rights. Therefore, neither C.R’s freedom of speech nor
her freedom of association is implicated by the disciplinary actions taken by the high
school to remove her from the drill team.
b. Procedural and Substantive Due Process
Parents claim that they have rights in (1) C.R.’s attendance at her normal and
customary high school and classes; (2) their monetary investment in drill team;
(3) C.R.’s good name and reputation; and (4) the policies and procedures in the school
district’s student handbook. They claim that these property rights were implicated
and deserve the constitutional protection of due process.
First, we address the claim that C.R. has a right to attend her “customary high
school.” Students have a right to free public education, and when that right is
implicated, due process may be used to protect against the deprivation of a student’s
access to education. Stafford Mun. Sch. Dist. v. L.P., 64 S.W.3d 559, 562–63 (Tex.
App.—Houston [14th Dist.] 2001, no pet.). However, transferring a student from
regular classes to an alternative education program does not impact a protected
property interest implicating due process concerns. Id. at 563.
11
Here, C.R. was not excluded from the educational process. Other than alleging
that C.R. was not provided an education in her “customary high school,” Parents have
not otherwise alleged that she was excluded from the educational process for the days
that she was in DAEP. Therefore, the allegations do not rise to the level of a
property interest implicating due process concerns.
Second, aside from claiming freedom-of-speech and association violations due
to C.R.’s removal from the drill team and revocation of her officer duties, Parents
claim that they have a protected interest in their monetary investment in drill team.
However, as set out above, there is no fundamental right to participate in
extracurricular activities. Spring Branch, 695 S.W.2d at 561; Flour Bluff, 2006 WL
949968, at *3. Because C.R.’s interest in drill team participation is not a cognizable
property interest, Parents’ monetary investment in the drill team does not receive
constitutional protection. See NCAA v. Yeo, 171 S.W.3d 863, 870 (Tex. 2005)
(holding that student-athlete’s claimed “interest in future financial opportunities” did
not assert an interest protected by article I, section 19 of the Texas Constitution).
Third, Parents claim C.R.’s assignment to DAEP impinged her right to her
good name and reputation. However, reputation alone is not entitled to due process
protection. Bd. of Trs. of Galveston Wharves v. O’Rourke, 405 S.W.3d 228, 237–38 (Tex.
App.—Houston [1st Dist.] 2013 no pet.). Only when it is coupled with a “more
tangible interest such as employment” is it worthy of due process protection. Id. In
the absence of any other deprivation of a protected property or liberty interest, a
12
student has no liberty interest in his reputation entitled to due process protection.
Stafford, 64 S.W.3d at 564. Similarly, Parents’ claim in C.R.’s good name and
reputation, standing alone, is not a protected interest. See Yeo, 171 S.W.3d at 868
(noting that the “United States Supreme Court [Paul v. Davis, 424 U.S. 693, 701, 96 S.
Ct. 1155, 1160–61 (1976)] has held that reputation alone is not a protected liberty or
property interest”).
Fourth, Parents claim C.R. has a protected interest in the policies and
procedures listed in Northwest ISD’s student handbook. Specifically, Parents state
that “the applicable state statute and district policy require that consideration be given
to ‘intent or lack of intent,’ as well as ‘a student’s disciplinary history,’ as mitigating
factors in any decision regarding removal to DAEP, ‘regardless of whether the
decision concerns a mandatory or discretionary action.’”
The Education Code specifically requires school districts to establish standards
for student conduct and to specify the circumstances and conditions under which a
student may be removed from a classroom and placed in an alternative education
program. Tex. Educ. Code Ann. § 37.001; Hankins v. P.H., 1 S.W.3d 352, 354 (Tex.
App.—Corpus Christi 1999, pet. denied). In this case, the student handbook
specifically states that “[i]n deciding whether to place a student in a DAEP,” the
administrator “shall take into consideration” certain things such as “[i]ntent or lack of
intent at the time the student engaged in the conduct” and “[t]he student’s disciplinary
history.” Despite this limiting language, judicial review of school district disciplinary
13
measures that do not rise to the level of expulsion is limited. Hankins, 1 S.W.3d
at 354. Disciplinary actions involving mere placement in an alternative education
program are not reviewable by a court of law. Id. As in Hankins, Parents have cited
us to no cases in which a trial court has been held to have jurisdiction to review the
disciplinary measures of a school district that do not rise to the level of expulsion, see
id., and we have found none.
Even in cases involving expulsion, being provided a hearing and the ability to
present evidence of prior conduct or any mitigating circumstances has been held to be
sufficient due process to satisfy the Fourteenth Amendment of the Constitution.
Galveston Indep. Sch. Dist. v. Boothe, 590 S.W.2d 553, 557–58 (Tex. App.—Houston [1st
Dist.] 1979, no writ). Here, even though there was no expulsion, Parents and C.R.
were provided a full hearing which included level one, two, and three appeals.
Parents cite to Hinterlong v. Arlington Independent School District as a “zero-
tolerance case which preceded the statutory requirement that intent be considered”
and as an example of the level of due process required by this court but denied to
C.R. No. 2-09-050-CV, 2010 WL 522641, at *3–4 (Tex. App.—Fort Worth Feb. 11,
2010, pet. denied) (mem. op.). In that case, we upheld the trial court’s judgment for
the school district and against the student on his due process claim because the school
district “provided an escape mechanism in lieu of strict application of the zero
tolerance policy–that is, Dr. Bernd testified that, if provided with any of the requested
evidence, he would have reversed the expulsion decision.” Id. at *2. However,
14
Hinterlong is inapplicable to this case. Indeed, Hinterlong was decided prior to the
amendment to Section 37.001 of the Texas Education Code which required that a
student code of conduct provide consideration to certain mitigating factors. Id.; see
Tex. Educ. Code Ann. § 37.001(a)(4). And it failed to reach the question of whether
there is a cognizable property interest in cases such as this one where there is no
expulsion.5 Hinterlong, 2010 WL 522641, at *2.
If in this claim Parents are alluding to the concept of procedural due process,
they must show that there is a protected liberty interest at stake, and then the court
may determine what process is due. Stafford, 64 S.W.3d at 563. The Stafford court
recognized that because a student’s transfer to an alternative education program did
not implicate due process protection and a liberty or property interest was not taken,
failure to notify the student of an appeals process did not impinge on any protected
interest. Id.
In this case, Parents are aware of the policies and procedures and in fact have
already moved through the appeals process afforded to C.R. Like in Stafford, no
liberty or property interest has been implicated by Northwest ISD because it has
afforded Parents and C.R. the ability to use those grievance methods as outlined in the
student handbook.
5
The court even noted that “the issue of whether a zero tolerance policy that
provides no escape mechanism would violate due process [was] not before us.” Id. at
*2, n.4.
15
3. Right to Replead
In Parents’ brief, they request the opportunity to replead in the event we
reverse the trial court’s ruling on Northwest ISD’s plea to the jurisdiction. A party
deserves a “reasonable opportunity to amend” unless the pleadings affirmatively
negate the existence of jurisdiction. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
839 (Tex. 2007) (citing Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004)); Miranda,
133 S.W.3d at 226–27; Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). As is
the case with special exceptions, a pleader must be given an opportunity to amend
only if it is possible to cure the pleading defect. Koseoglu, 233 S.W.3d at 840.
The Koseoglu court held that where jurisdictional defects are in fact curable, the
plaintiff has the opportunity to replead. Id. Even though the Koseoglu court upheld
the repleading standard, it ultimately found that the jurisdictional defects were not
curable. Id. The court reasoned that allowing the plaintiff to replead and plead more
facts in favor of his contract claim would not change the fact that the entity had
immunity which deprived the court of subject-matter jurisdiction. Id.
Where a plea to the jurisdiction challenges the sufficiency of the plaintiff’s
pleadings to establish a waiver of governmental immunity, and thereby establish
jurisdiction, we must determine whether the plaintiff has pled a facially valid
constitutional claim. Compton v. Port Arthur Indep. Sch. Dist., No. 09-15-00321-CV,
2017 WL 3081092, at *3 (Tex. App.—Beaumont July 20, 2017, no pet.) (mem. op.).
16
If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.
Id.
Here, Parents have complained of the assignment of C.R. to DAEP and the
accompanying loss of her drill team privileges. As set out above, the disciplinary
assignment is not appealable under the Education Code, and there is no fundamental
right to participate in extracurricular activities.6 In their briefs, Parents have not
suggested how they would replead to give the trial court jurisdiction. If Parents were
allowed to replead, more facts would not make the claims viable or change the law
enacted by the legislature, thereby giving the trial court subject-matter jurisdiction to
hear the case. As a result, Parents are not entitled to the opportunity to replead.
IV. CONCLUSION
Because Northwest ISD’s disciplinary decisions are not appealable under
Chapter 37 of the Texas Education Code and Parents did not plead viable
constitutional claims, the trial court did not have jurisdiction to hear this matter.
Therefore, we reverse the trial court’s order denying Northwest ISD’s plea to the
jurisdiction and render judgment dismissing Parents’ claims.
6
In addition, we are mindful of the fact that the Texas Supreme Court has
quoted the following counsel of the United States Supreme Court to the trial courts
and courts of appeal: “Courts do not and cannot intervene in the resolution of
conflicts which arise in the daily operation of school systems and which do not
directly and sharply implicate basic constitutional values.” Yeo, 171 S.W.3d at 870
(quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270 (1968)).
17
/s/ Dana Womack
Dana Womack
Justice
Delivered: August 20, 2020
18 | 01-03-2023 | 08-24-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5903593/ | Levine, J.
Appeal from a judgment of the Supreme Court (Vogt, J.), in favor of defendants Stewart-Scott Associates, Inc., and Louis Benson, entered March 18, 1987 in Ulster County, upon a dismissal of the complaint against them at the close of the evidence.
In September 1983, defendant Stewart-Scott Associates, Inc. (hereinafter Stewart-Scott) was a general contractor at a jobsite on Mill Street in the City of Poughkeepsie, Dutchess County, where a building was being renovated into apartments. Defendant Louis Benson was the construction superintendent for Stewart-Scott. Defendant Paul E. Colucci, doing business as Paul E. Colucci Excavating Company (hereinafter Colucci), was a subcontractor at the site.
On September 28, 1983, Benson and Colucci discussed the *902necessity to clean up the site and remove debris which had accumulated during the renovation. Colucci was to transport reusable materials, including some steel I-beams, to Stewart-Scott’s storage site on Cedar Avenue. Benson also agreed to let Colucci keep the largest (20-foot) beam in exchange for some gravel Colucci had delivered. During the course of the morning the steel beams and other materials were loaded on Colucci’s trailer and secured with chains. According to testimony in the record, one chain at the head of the trailer secured the 20-foot beam, which was propped up on the headboard and extended several feet off the rear of the trailer bed. Several additional chains were used to secure the rest of the load which consisted of 5 to 10 steel beams, blocks, plywood and rolls of fencing.
Colucci and his brother-in-law, defendant John Shand, drove the loaded trailer to Cedar Avenue around noontime. Colucci testified that he did not undo the chain holding the long beam when he and Shand unloaded the trailer. After everything else was removed, Colucci visually checked to make sure that the long beam, and a second smaller beam, were secure for the drive back to Mill Street. He put on another chain toward the rear of the trailer just to be sure. When Colucci returned to Mill Street, he observed that the load had not shifted.
At the end of the workday Colucci returned to his trailer and again visually inspected the beam and the chains to satisfy himself that they were secure. Shand agreed to follow the trailer in a pickup truck as Colucci drove to his home in the Town of Gardiner, Ulster County.
While en route to his home, Colucci’s trailer entered a right-hand curve just as plaintiff was traveling in the opposite direction on the same curve. Plaintiff saw the beam extending off Colucci’s trailer into his lane at a 45-degree angle. Plaintiff steered his car to the right, applied his brakes, and laid down on the seat when he saw the beam coming at him. The beam struck the vehicle, resulting in serious injuries to plaintiff.
Subsequently, plaintiff commenced an action against defendants alleging, inter alia, negligence against Stewart-Scott and Benson in loading and securing the beam, in supervising the jobsite, and in hiring an incompetent hauling subcontractor. The case was tried before a jury at which the aforementioned facts were adduced. At the close of all the evidence, Supreme Court granted a motion by Stewart-Scott and Benson to dismiss the action against them as a matter of law. The jury subsequently returned a verdict finding Colucci 100% liable *903for plaintiffs injuries. This appeal by plaintiff and Colucci (hereinafter collectively referred to as appellants) is from that part of the judgment dismissing the complaint against Stewart-Scott and Benson (hereinafter collectively referred to as respondents).
Appellants contend that Supreme Court erred in dismissing the complaint against respondents since the evidence, viewed most favorably to appellants, provided rational means by which a jury could have found respondents liable based upon their negligence (see, 4 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 4401.14-4401.15).
Initially, we note that no one was able to identify who actually loaded the trailer or secured the material with chains, although the testimony assumes that Stewart-Scott’s employees assisted. However, even accepting that inference as true, there is no evidence indicating that Stewart-Scott’s employees were negligent in securing the entire load for the purpose of its transportation to the storage lot on Cedar Avenue. According to Colucci’s own testimony, the long beam was positioned lengthwise on the center of the trailer with the other beams on either side of it. In addition there were blocks and plywood and fencing piled toward the rear of the trailer. Nothing in the proof adduced at trial evidences that the original loading of the trailer was done negligently or that the long beam was anything but fully secured among the other beams and materials on the trailer. Moreover, there is no evidence whatsoever showing that the individuals who loaded the trailer knew that the one beam would not be unloaded at Cedar Avenue. Likewise, it was not foreseeable that Colucci would fail to adequately resecure this beam when it was the only item left on the trailer (cf., Mack v Altmans Stage Light. Co., 98 AD2d 468, 470-473 [a defendant will not be liable where an injury results from subsequent negligent acts by others which are not foreseeable]).
Appellants further contend that respondents’ negligence was established by proof supporting an inference that the beam came loose at the head of the trailer, where the only chain securing that end was attached by Stewart-Scott employees. We disagree. Neither Colucci, Shand nor plaintiff could identify which end of the beam came off the trailer. Nor was there testimony that any of the chains had broken or any other evidence as to how the accident occurred. Hence, appellants’ proof was insufficient to support even an inference that the accident was traceable to a negligent act by Stewart-Scott employees.
*904In our view, once the trailer was unloaded at Cedar Avenue, Colucci, as an independent contractor transporting a steel beam belonging to him, had the duty to adequately secure the beam once it was the only cargo on his trailer. Colucci’s failure to do this is in no way attributable to respondents. Thus, we agree with Supreme Court that based on the evidence presented, and viewing it in a light most favorable to appellants, a jury could not have rationally found that the accident was proximately caused by any negligence on the part of respondents or one of their employees. Hence their motion was properly granted (see, Sheehan v City of New York, 40 NY2d 496, 502).
Plaintiff also contends that respondents’ liability could have been predicated upon their failure to hire a competent hauling subcontractor. The only evidence in the record to support the contention that Colucci was not competent to haul beams is Colucci’s testimony that he "doesn’t recall” hauling beams in the past. There was no proof of respondents’ awareness of any inexperience on Colucci’s part as to hauling beams. Colucci was apparently an established excavator and presumably was experienced in hauling the various kinds of debris and materials from jobsites (see, 3 NY Jur 2d, Agency and Independent Contractors, § 343, at 168-169). The evidence was thus legally insufficient to support a finding of liability on this theory.
We have considered appellants’ other contentions and find them to be without merit. Any defect in the form of the questions submitted to the jury for special findings as to proximate cause, as alluded to by the dissent, was not objected to at trial or raised as an issue on appeal. Therefore, it is not properly before us.
Judgment affirmed, with costs. Weiss, Levine and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903599/ | Levine, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 11, 1986, which ruled that claimant was disqualified from receiving benefits because his employment was terminated due to misconduct.
Claimant was discharged from his employment for refusing to sign a report prepared by his supervisor which stated that claimant, on a particular day, reported to work in violation of the employer’s dress code. The report contained the following statement: "Signing this form is required. However, your signature only means that the contents of this document have been discussed with you. It does not mean that you agree.” Claimant refused to sign the report and persisted in his refusal even after he was advised that he would be fired if he did not sign the report. Following his termination, claimant sought unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that claimant’s refusal to sign the report was both a knowing violation of the employer’s policy and insubordination in failing to follow a reasonable *913order of his employer. The Board ruled that claimant’s actions constituted disqualifying misconduct. This appeal ensued.
On appeal, claimant contends that he did not sign the report because it would constitute an admission which could be used against him. The statement appearing at the bottom of the form belies this contention, however, and distinguishes claimant’s case from Matter of Singleton (Ross) (82 AD2d 952), where we held that an employee was not guilty of misconduct for refusing to sign a written reprimand where the employee had objected on the ground that her signature would constitute an admission of wrongdoing and where she had been given no assurance to the contrary. Since claimant received such assurance here, his failure to comply with his employer’s order that he sign the form was unjustified and could be considered misconduct (see, Matter of Centineo [Levine], 53 AD2d 759; Matter of Overton [Levine], 49 AD2d 775). Furthermore, the Board could properly find that claimant’s knowing violation of his employer’s rules constituted misconduct (see, Matter of McIntee [National Ambulance & Oxygen Serv.— Ross], 64 AD2d 1003; Matter of Green [Levine], 53 AD2d 782; Matter of Risdell [Levine], 52 AD2d 1025).
Decision affirmed, without costs. Kane, J. P., Casey, Levine, Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903601/ | Casey, J.
Appeal from a judgment of the Supreme Court (Williams, J.), entered January 15, 1987 in Ulster County, which granted petitioners’ application, in a proceeding pursuant to CPLR article 78, to enjoin respondents from preventing petitioner Eartha Campain from attending school without a certificate of immunization and awarded counsel fees.
As limited by respondents’ brief, the issue on this appeal is whether Supreme Court abused its discretion when it granted counsel fees to petitioners pursuant to 42 USC § 1988. The underlying dispute between the parties arose when respondents refused to permit petitioner Eartha Campain, then age six, to attend school in respondents’ school district without proof of immunization, as required by Public Health Law § 2164 (7) (a). Petitioner Carol Campain, Eartha’s mother, claimed that since immunization would conflict with her "conscientiously held religious, moral and spiritual convictions”, the exception contained in Public Health Law § 2164 (9) was applicable, permitting Eartha to attend school without proof of immunization. This claim was rejected by respondents on the ground that the statute applied only where a parent belongs to a recognized religious organization whose teachings prohibit immunization. After pursuing available administrative remedies, petitioners commenced this CPLR article 78 proceeding, alleging that respondents’ determination violated certain rights guaranteed by State statute and the Federal Constitution. Based upon the Federal claims, petitioners asserted jurisdiction under 42 USC § 1983 and requested counsel fees under 42 USC § 1988.
Supreme Court held that, to avoid a conflict with the freedom of religion guarantee in the First Amendment, the exemptions contained in Public Health Law § 2164 (9) must be construed as covering persons who hold sincere religious beliefs that immunization is wrong, irrespective of whether those persons belong to a recognized religious organization whose teachings oppose immunization. On the issue of counsel fees, Supreme Court initially denied petitioners’ request, but upon reargument, counsel fees were awarded to petitioners, and respondents appeal.
Respondents concede that the 1976 Civil Rights Attorneys’ Fees Awards Act (42 USC § 1988) is applicable in these circumstances (see, Matter of Johnson v Blum, 58 NY2d 454, 458, n 2). Respondents also concede that in applying the Act, New *915York follows the Federal rule under which the prevailing party ordinarily recovers counsel fees " 'unless special circumstances would render such an award unjust’ ” (supra, at 457, n 1, 458). It is respondents’ contention that their good-faith reliance upon the plain wording of the statutory exemption and upon a prior decision of this court (see, McCartney v Austin, 31 AD2d 370) constitutes a "special circumstance” which would render an award of counsel fees unjust. We agree with Supreme Court that good faith alone is not a special circumstance which prevents an award of counsel fees.
One of the remedial policies underlying 42 USC § 1988 is an intent "to facilitate access to the judicial process for victims of civil rights violations who might not otherwise be able to afford it because either no money was involved or if financial recovery was available, the sum involved did not warrant the expense of the litigation required to secure their rights” (Matter of Johnson v Blum, supra, at 458). The fact that respondents may have acted in good faith bears no relationship to this policy goal. While the Court of Appeals also recognized the deterrent effect of an award of counsel fees (supra), we do not read this as a limitation on the court’s authority to award counsel fees under 42 USC § 1988 (supra, at 459), particularly since an award of punitive damages, a far more effective deterrent, may be available in cases of evil motive or intent, or reckless or callous indifference to the Federally protected rights of others (see, Smith v Wade, 461 US 30).
In State Communities Aid Assn. v Regan (112 AD2d 681, 684, appeal dismissed 66 NY2d 759), we held that since the defendants’ actions were not malicious, there was an adequate basis for Supreme Court’s exercise of discretion in denying an award of counsel fees under State Finance Law § 123-g, but we also found that special circumstances which would prevent such an award under 42 USC § 1988 had not been demonstrated. Generally, Federal courts have refused to recognize good faith as a special circumstance requiring denial of counsel fees under 42 USC § 1988 (see, e.g., Rose v Heintz, 806 F2d 389; Williams v Alioto, 625 F2d 845, cert denied 450 US 1012; Population Seros. Intl. v Carey, 476 F Supp 4). Accordingly, we affirm Supreme Court’s judgment.
Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903602/ | Levine, J.
Appeals (1) from a judgment of the Supreme Court (Connor, J.), entered January 2, 1987 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78 to, inter alia, vacate a warrant docketed against petitioner, and (2) from an order of said court, entered May 8, 1987 in Albany County, which denied petitioner’s motion for renewal.
Petitioner is and was at all relevant times the president of Lou Halperin’s Stations, Inc. (hereinafter the corporation), the owner and operator of a chain of gas stations on Long Island. His cousin, James Halperin, an attorney, was the secretary of the corporation. Following an audit, the Department of Taxation and Finance (hereinafter the Department) determined that the corporation owed additional sales taxes of over $3 million. A notice of determination and demand for payment of that amount plus interest and penalties was mailed to the corporation on November 27, 1984. At the same time, notices were sent to and received by petitioner and James Halperin stating: "You are personally liable as officer of [the corporation] under Sections 1131 (1) and 1133 of the Tax Law for the following taxes determined to be due in accordance with Section 1138 (a) of the Tax Law.” All of the notices advised in boldface type that the taxes assessed therein were determined under Tax Law § 1138 and could be challenged by the filing of a petition within 90 days. The corporation timely filed a petition with the State Tax Commission (hereinafter the Commission). No petition, however, was filed by petitioner or James Halperin.
In June 1985, following a discussion between the corporation’s accountant and a staff person of the Department, petitioner was advised by his then attorneys (who also represented the corporation and James Halperin), that he was being personally assessed for the corporation’s liability. Shortly thereafter, the attorneys formally requested that the Department not enforce collection against petitioner and James Halperin until a final determination of the corporation’s liability. At the same time, the attorneys asked for a "courtesy” hearing on behalf of James Halperin, asserting that he was not at all actively involved in the affairs of the corporation and should, therefore, not be held personally liable. Petitioner later submitted an affidavit in support of James Halperin’s position. In December 1985, a warrant was filed against petitioner in the Nassau County Clerk’s office for the liability herein, including additionally accrued penalties and interest.
*917Subsequently, petitioner retained his present attorneys who filed an application with the Commission in March 1986 requesting that the Commission accept petitioner’s late petition for a redetermination of the November 1984 assessment and that it be treated as timely filed or, in the alternative, that the corporation’s timely petition for redetermination be amended to include him as a party. The only excuse for petitioner’s tardiness contained in the application was his claimed misimpression that the notice he received was merely a duplicate of the corporation’s notice, which he had referred to his attorneys for prompt and appropriate action. The Commission denied the request. Petitioner then brought this CPLR article 78 proceeding to annul the Commission’s determination and to compel the Commission to accept his administrative petition, vacate the tax warrant previously filed and to grant him a hearing on the issue of his personal liability. After Supreme Court granted dismissal of the petition on the merits, petitioner moved to vacate or renew on the ground that he had newly discovered the Commission’s subsequent redetermination absolving James Halperin of personal liability. Supreme Court denied petitioner’s motion. These appeals ensued.
There should be an affirmance. The statutory requirement that a petition for administrative redetermination of petitioner’s personal liability be filed within 90 days is absolute and, in the absence of such timely application, the original determination “shall finally and irrevocably fix the tax” (Tax Law § 1138 [a] [1]; see, Tax Law § 1138 [a] [3] [B], eff Apr. 17, 1985; Matter of West Mountain Corp. v State of New York Dept. of Taxation & Fin., 105 AD2d 989, 990, affd 64 NY2d 991). Although the statute also provides that the Commission may make a determination on “its own motion” (Tax Law § 1138 [a] [3] [B]), the Commission’s action is a matter of grace (Matter of Corbisiero v New York State Tax Commn., 82 AD2d 990, affd 56 NY2d 680). It is, therefore, at most reviewable only as a question of an abuse of discretion (see, Matter of Schwartz [Creative Tutoring—Roberts] 91 AD2d 778).
We find no abuse of the Commission’s discretion here in denying petitioner relief from his failure to timely commence administrative review. The notice he admitted receiving clearly and unmistakably informed him that the assessment was against him personally and of the 90-day period of limitations within which to seek a redetermination. He delayed an additional eight months after even he admitted that he was actually aware of his personal jeopardy for the tax. His excuse *918amounted to nothing but inadvertence. Most significantly, he offered nothing to the Commission to show that, at a hearing, he could establish facts to excuse him from personal liability for the unpaid taxes of the corporation of which he was president and, by his own averments in his affidavit in support of the application for relief of James Halperin, "sole stockholder * * * chief executive, operating and financial officer” (see, Matter of Massa v New York State Tax Commn., 102 AD2d 968, 969; Gage v State Tax Commn., 73 AD2d 635, 636-637). It was also a proper exercise of the Commission’s discretion to have refused to permit an amendment to the corporation’s petition to add petitioner as a party, since this was nothing more than a procedural device to overcome the effect of petitioner’s tardiness. We find petitioner’s due process and estoppel arguments equally unavailing.
Supreme Court was also correct in denying petitioner’s motion to vacate or renew. Apart from the dubious question as to whether the Commission’s redetermination relieving James Halperin of personal liability was in fact newly discovered subsequent to the judgment of dismissal, Supreme Court quite properly concluded that, even as new material, it would not have affected the result. Petitioner’s affidavit in support of James Halperin’s application alone provided a rational basis for treating James Halperin differently.
Judgment and order affirmed, without costs. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur. [See, Matter of Halperia v Chu, 134 Misc 2d 105.] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903603/ | Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about July 5, 2011, which, in this dental malpractice action, to the extent appealed from as limited by the briefs, denied plaintiffs motion to amend the complaint to add a cause of action for lack of informed consent, granted the dentist defendants’ (defendants) motion for partial summary judgment dismissing plaintiffs gross negligence and breach of implied warranty claims and her demand for punitive damages, and denied plaintiff’s cross motion for leave to amend the complaint to add a claim for breach of contract and to further particularize facts concerning her claims for lack of informed consent, gross negligence, and breach of contract, unanimously affirmed, without costs.
The court providently exercised its discretion in denying plaintiffs request for leave to amend the complaint to add lack of informed consent claims. Plaintiff failed to submit an expert affirmation stating with certainty that the information defendants allegedly provided to plaintiff before the dental procedures at issue departed from what a reasonable practitioner would have disclosed (see Orphan v Pilnik, 15 NY3d 907, 908 [2010]). Further, the numerous unauthenticated audio recordings upon which plaintiff heavily relies are insufficient to independently establish the merit of her proposed amendment.
Plaintiff’s allegations that defendants negligently placed a veneer on one of her teeth, intentionally misled her to believe that she would receive the “picket fence” dental treatment, and gave her precision dentures despite a lack of experience in this area, do not rise to the level of gross negligence, as the alleged conduct does not “smack” of intentional wrongdoing (see Apple Bank for Sav. v PricewaterhouseCoopers LLP, 70 AD3d 438, 438 [1st Dept 2010] [internal quotation marks omitted]). Plaintiffs allegations do not sufficiently state anything other than dental malpractice claims. The alleged conduct also “falls short of *531showing the high degree of moral turpitude, wanton dishonesty and utter malice necessary to an award of punitive damages” (Board of Mgrs. of the Waterford Assn., Inc. v Samii, 68 AD3d 585, 586 [1st Dept 2009] [internal quotation marks omitted]).
Plaintiff’s proposed breach of contract claim is “legally redundant” of the dental malpractice claim, and plaintiff has failed to show that, within the context of her dental treatment, defendants expressed a specific promise to accomplish some definite result (Scalisi v New York Univ. Med. Ctr., 24 AD3d 145, 147 [1st Dept 2005]). Defendants’ alleged promises to make plaintiff look “gorgeous” are insufficient.
Plaintiff has not shown that there had been a sale within the meaning of the Uniform Commercial Code (UCC) so as to give rise to any implied warranties under section 2-315 of the UCC. Indeed, the dental items plaintiff identified in her complaint are not “goods” within the meaning of section 2-315. Rather, they are items that were “incidental part[s] of the services rendered” by defendants in the course of plaintiffs dental treatment (see Osborn v Kelley, 61 AD2d 367, 369 [3d Dept 1978]). Concur— Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. [Prior Case History: 2011 NY Slip Op 31804(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903604/ | Yesawich, Jr., J.
Appeal from an order of the Surrogate’s Court of Franklin County (Plumadore, S.), entered May 21, 1987, which, iater alia, denied petitioner’s motion to prevent the submission and signing of a proposed order denying substituted service of citation with respect to the probate of an instrument claimed to be decedent’s 1979 will.
In January 1985, a purported last will and testament of decedent, Margaret Germain, dated May 3, 1974 (hereinafter the Lovinger will) was offered for probate in Franklin County by respondent, the executor named therein. On February 26, 1985, petitioner filed with the Franklin County Surrogate’s Clerk a purported last will and testament of decedent dated December 14, 1979 (hereinafter the Poulin will). In a covering letter, petitioner’s counsel asked that the Poulin will be held pending the filing of a probate petition in the first week of *919March and also announced an intention to file an objection to the probate of the Lovinger will. On March 16, 1985, no other probate petition having been filed (allegedly because of financial constraints) and no formal objections having been registered against the Lovinger will, Surrogate’s Court admitted it to probate. Petitioner’s timely appeal from the decree of Surrogate’s Court was ultimately dismissed by this court 22 months later due to petitioner’s default in perfecting the appeal.
In the meantime, in April 1985, petitioner was served with a show cause order based upon respondent’s petition charging petitioner and his wife with having fraudulently obtained property of the decedent. In addition to responding to the show cause order, petitioner filed an application for letters of administration with the Poulin will annexed. Although a citation was issued on June 4, 1985, it was not until some 19 months later, on January 5, 1987, that petitioner undertook to make an ex parte application for an order authorizing substituted service on four of the individuals named in the original citation whom petitioner had been unable to serve. Upon receipt of this application, Surrogate’s Court suggested that a supplemental citation might be available and solicited counsels’ views, after which, by letter dated February 12, 1987, the court advised that it declined to exercise its discretion to authorize further service, for petitioner’s appeal from the decree admitting the Lovinger will to probate had been dismissed as of January 12, 1987 and because of "other attendant circumstances”. On February 25, 1987, petitioner inquired of Surrogate’s Court whether an order embodying the content of the court’s February 12, 1987 letter would be issued. The Surrogate’s law clerk thereupon wrote respondent asking that such an order be submitted. Respondent complied on May 12, 1987. Petitioner thereupon objected to the order being signed because its submission was untimely (see, 22 NYCRR 207.37 [a]) and, alternatively, asked Surrogate’s Court to reconsider its February 12, 1987 decision. On May 21, 1987, the court rejected petitioner’s objections and signed the proposed order. Petitioner appeals from the May 21, 1987 order and decision, charging that Surrogate’s Court abused its discretion and committed an error of law by denying petitioner’s application for the issuance of a supplemental citation and asserting further that, by signing the order, the court violated the Uniform Rules for Trial Courts (22 NYCRR 207.37). We affirm.
The relevant sections of the rule at issue read as follows:
"(a) Proposed orders or judgments, with proof of service on *920all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.
"(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or proceeding unless for good cause shown” (22 NYCRR 207.37). As Surrogate’s Court aptly observed, the "deemed abandoned” provision of subdivision (b) is directed at "winners”; it applies only to successful parties in the case of an action or proceeding, and successful movants in the case of a motion, who abandon their victories (see, NY State Law Digest, The New Time Limit on Submitting Judgments and Orders, No. 326, Feb. 1987, at 1; cf., Hickson v Gardner, 134 AD2d 930). The provisions of the rule are clearly inapplicable here for in the instant matter petitioner was the "loser”, having unsuccessfully petitioned the court not to sign a proposed order denying substitute service with respect to the Poulin will.
Nor do we find any substance in petitioner’s contention that Surrogate’s Court misused its authority. Issuance of supplemental process is within the province of the court’s discretion (see, SCPA 312) and, while such process is normally issued as a matter of course, the special circumstances in the case at hand furnish ample basis for Surrogate’s Court to have acted otherwise. Given that petitioner allowed his appeal from the decree admitting the Lovinger will to probate to lapse and that he did not seek substituted service of citation until 19 months after the original citation was issued, and then only on the eve of a discovery proceeding instituted against petitioner by respondent, we are loathe to find fault with the manner in which the court exercised its discretion.
Order affirmed, without costs. Casey, J. P., Yesawich, Jr., Harvey and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903605/ | Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant was indicted for murder in the second degree as a result of the fatal shooting of Daniel Saj. During the course of the jury charge the court stated: "What you are here for is because the *921People of the State of New York say, 'We charge you, the defendant, Gary Stahl, with committing this crime.’ He says, T didn’t commit that crime. I didn’t commit murder. What I did was commit manslaughter.’ That is for the jury to decide not a Judge. Nobody in government can make that decision. But, you are not here to decide what punishment should be imposed, if any, for the commission of either crime. So when you leave here, do not discuss that, what is going to happen if we return this verdict or that verdict. All right. The question is based upon what we see and have heard and what we believe, what is the proper verdict, what crime was committed.” The trial court thereafter concluded its charge by stating: "you will report the verdict. When you are unanimous you come down and say, 'We the jury, find’, either it is going to be guilty of murder in the second degree or guilty of manslaughter in the first degree. Those are the only possible verdicts that you have”.
It is the jury’s basic function to determine a defendant’s innocence or guilt. The trial court, by this charge, usurped the jury function by directing a guilty verdict. This is unequivocally error because a directed verdict is never permitted in a criminal prosecution (Connecticut v Johnson, 460 US 73, 84; People v Walker, 198 NY 329, 334-335). Further, the instruction violates the mandates of CPL 300.10 (4), which directs the court to submit on each count of the indictment a verdict of not guilty for the jury’s consideration. Although there was no timely objection to this error, a new trial is required because the error is of such magnitude as to deny defendant his constitutional right to a fair trial. (See, Chapman v California, 386 US 18, 24, reh denied 386 US 987; People v Thomas, 50 NY2d 467, 471; People v Patterson, 39 NY2d 288, 295, affd 432 US 197.)
We have reviewed defendant’s remaining contentions and find them to be without merit. (Appeal from judgment of Niagara County Court, Hannigan, J. — murder, second degree.) Present — Dillon, P. J., Doerr, Boomer, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903606/ | — Order unanimously affirmed without costs for reasons stated at Supreme Court, Houston, J. (Appeal from order of Supreme Court, Monroe County, Houston, J. — Public Health Law § 3388.) Present — Dillon, P. J., Doerr, Boomer, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903607/ | Judgment unanimously affirmed with costs. Memorandum: Plaintiff, an attorney, commenced this interpleader action seeking a determination by the court of the conflicting claims of defendants United States, the State of New York, and Surfside Pizzeria, Inc., to moneys he held in escrow as a result of a transfer in bulk from Surfside Pizzeria, Inc., to his clients (see, Tax Law § 1141 [c]).
In his demand for relief plaintiff requested not only a determination of the rights of the interpleaded defendants to the moneys held in escrow, but also an injunction restraining the State from bringing any action against his clients, who were denominated defendants in the action, and from levying upon any of their property because of sales taxes owed by the transferor, Surfside Pizzeria, Inc.
On the cross motion of plaintiff, Special Term granted summary judgment directing that the moneys held in escrow be distributed to the claimants, State Department of Labor and State Department of Taxation and Finance, and also that plaintiff’s clients be discharged from any liability for taxes owed by the transferor, Surfside Pizzeria, Inc.
On appeal, the State Department of Taxation and Finance contends that the court erred in discharging plaintiff’s clients from any further liability for taxes owed by the transferor, Surfside. It contends that the court had no authority in this interpleader action to define the rights of the claimants other than their rights in the "stake”, here the moneys held in escrow (see, Watts v Swiss Bank Corp., 30 AD2d 791); that the proper proceeding for such relief was an action for a declaratory judgment.
We disagree. A civil proceeding shall not be dismissed solely because it is not brought in the proper form (CPLR 103 [c]). At any stage of the action, the court may disregard a mistake or irregularity if a substantial right of the party is not prejudiced (CPLR 2001). Here Special Term properly disregarded the form of the action because no substantial right of defendant, State Department of Taxation and Finance, was prejudiced. At Special Term, the Department raised the issue of the tax liability of plaintiff’s clients and fully addressed that issue on the merits without making any objection to the form of the action.
The Department of Taxation and Finance further contends *923on the merits that the court erred in discharging the transferees from further liability. It contends that the purchasers are liable for the sales taxes owed by the seller because they failed to comply with Tax Law § 1141 (c) by failing to hold in escrow not only the cash proceeds of the sale, but also moneys for the payment of the seller’s private debts in the amount of $31,000, which the purchasers assumed as part of the consideration for the sale.
We disagree. Section 1141 (c) forbids the purchaser from transferring to the seller any "sums of money, property or choses in action” which, under the terms of sale, the purchaser is required to transfer to the seller. The buyer’s payment of the seller’s debts is not a transfer to the seller of "money, property or choses in action” within the meaning of this section. (Appeals from judgment of Supreme Court, Erie County, Wolf, J. — summary judgment.) Present — Dillon, P. J., Doerr, Boomer, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903608/ | Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about July 5, 2011, which, in this dental malpractice action, to the extent appealed from as limited by the briefs, denied plaintiffs motion to amend the complaint to add a cause of action for lack of informed consent, granted the dentist defendants’ (defendants) motion for partial summary judgment dismissing plaintiffs gross negligence and breach of implied warranty claims and her demand for punitive damages, and denied plaintiff’s cross motion for leave to amend the complaint to add a claim for breach of contract and to further particularize facts concerning her claims for lack of informed consent, gross negligence, and breach of contract, unanimously affirmed, without costs.
The court providently exercised its discretion in denying plaintiffs request for leave to amend the complaint to add lack of informed consent claims. Plaintiff failed to submit an expert affirmation stating with certainty that the information defendants allegedly provided to plaintiff before the dental procedures at issue departed from what a reasonable practitioner would have disclosed (see Orphan v Pilnik, 15 NY3d 907, 908 [2010]). Further, the numerous unauthenticated audio recordings upon which plaintiff heavily relies are insufficient to independently establish the merit of her proposed amendment.
Plaintiff’s allegations that defendants negligently placed a veneer on one of her teeth, intentionally misled her to believe that she would receive the “picket fence” dental treatment, and gave her precision dentures despite a lack of experience in this area, do not rise to the level of gross negligence, as the alleged conduct does not “smack” of intentional wrongdoing (see Apple Bank for Sav. v PricewaterhouseCoopers LLP, 70 AD3d 438, 438 [1st Dept 2010] [internal quotation marks omitted]). Plaintiffs allegations do not sufficiently state anything other than dental malpractice claims. The alleged conduct also “falls short of *531showing the high degree of moral turpitude, wanton dishonesty and utter malice necessary to an award of punitive damages” (Board of Mgrs. of the Waterford Assn., Inc. v Samii, 68 AD3d 585, 586 [1st Dept 2009] [internal quotation marks omitted]).
Plaintiff’s proposed breach of contract claim is “legally redundant” of the dental malpractice claim, and plaintiff has failed to show that, within the context of her dental treatment, defendants expressed a specific promise to accomplish some definite result (Scalisi v New York Univ. Med. Ctr., 24 AD3d 145, 147 [1st Dept 2005]). Defendants’ alleged promises to make plaintiff look “gorgeous” are insufficient.
Plaintiff has not shown that there had been a sale within the meaning of the Uniform Commercial Code (UCC) so as to give rise to any implied warranties under section 2-315 of the UCC. Indeed, the dental items plaintiff identified in her complaint are not “goods” within the meaning of section 2-315. Rather, they are items that were “incidental part[s] of the services rendered” by defendants in the course of plaintiffs dental treatment (see Osborn v Kelley, 61 AD2d 367, 369 [3d Dept 1978]). Concur— Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. [Prior Case History: 2011 NY Slip Op 31804(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823559/ | Trademark for pasteurized blend of water, hydrogenated vegetable oil, etc. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903609/ | — Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court, Cayuga County, for further proceedings, in accordance with the following memorandum: We agree with Special Term’s determination to the extent that it granted plaintiffs’ motion to dismiss defendants’ affirmative defenses of adverse possession and laches and denied defendants’ motion to amend their answer to add the affirmative defense of easement by prescription, for the reasons stated in Special Term’s memorandum decision. We disagree with the determination insofar as it dismissed the defense of equitable estoppel. On a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant’s allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof (see, Siegel, NY Prac § 269, at 327). If defendants’ version of the relevant events in this case is deemed to be true, plaintiffs had knowledge for a period of about 21 years that one of defendants’ buildings encroached upon their land because defendants informed plaintiff Edwin Grunder of this fact in 1963, when Grunder’s mother still owned the land. When plaintiffs became record owners of the property in 1970 they did nothing to assert their property rights, but, rather, Edwin Grunder assured defendant Richard Recckio that he shouldn’t worry about it and that things would be worked out. Further, plaintiffs lived on the adjoining property and watched defendants invest time and money into the development of their farm market busi*924ness on the subject property, never voicing a complaint during their 14 years of ownership until 1984, when they commenced this ejectment action. If defendants’ allegations are true (plaintiffs, of course, dispute those assertions), plaintiffs’ conduct could be determined to be sufficiently culpable to justify enforcing an equitable estoppel against them (see, Trenton Banking Co. v Duncan, 86 NY 221, 230; Kraker v Roll, 100 AD2d 424, 433). Because the evidence submitted on this motion presents sharp factual disputes, the resolution of which requires a determination of the credibility of the parties which can only be resolved after a trial, Special Term erred by determining these issues on the papers. (Appeal from order of Supreme Court, Cayuga County, Maas, J. — summary judgment.) Present — Dillon, P. J., Doerr, Boomer, Balio and Law-ton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903610/ | Case held, decision reserved and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: Claimant seeks compensation for the value of gas and oil storage rights and natural gas reserves on his land which were acquired on October 27, 1982 by National Fuel Gas Supply Corporation pursuant to ECL 23-1303. After a trial on valuation, the court dismissed the claim, concluding that claimant had failed to demonstrate the existence of commercially recoverable gas. The sole fact found by the trial court was that six previous wells failed to produce economically recoverable gas and were plugged and abandoned. This fact standing alone is insufficient to support the court’s decision because these wells were abandoned approximately 30 years prior to this taking and since that time gas recovery drilling techniques in Medina formation have radically changed. Further, no findings were made as to the value of the gas storage rights.
In appropriation and condemnation cases the trial court should make findings of fact as explicitly as possible (Lord v State of New York, 48 NY2d 711, 713). The court in its decision is required to state the essential facts (EDPL 512; CPLR 4213 [b]). This procedure "is necessary to insure a proper adjudication in the trial court and adequate appellate review” (Matter of Niagara Mohawk Power Corp., 114 AD2d 542, 543). Here, the trial court has failed to provide sufficient findings of fact to permit adequate appellate review. Accordingly, we must withhold decision and remit this matter to *925Trial Term for detailed findings of fact regarding the economic value, if any, of gas reserves and gas storage rights acquired by National Fuel Gas. Further, prior to issuing its decision the trial court shall afford the parties the opportunity to submit requests for findings of fact (CPLR 4213 [a]). (Appeal from judgment of Supreme Court, Erie County, Wolf, J. — condemnation.) Present — Dillon, P. J., Doerr, Boomer, Balio and Law-ton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903611/ | Judgment unanimously reversed on the law, defendant’s motion granted, and new trial granted, in accordance with the following memorandum: Defendant, a 15-year-old boy, was convicted, following a jury trial, of murder in the second degree (Penal Law § 125.25 [2]; *926under circumstances evincing a depraved indifference to human life) for shooting his 11-year-old companion in the back of the head with a shotgun while the two boys were playing in defendant’s bedroom on the evening of November 12, 1985. On this appeal, defendant seeks review of the determination denying his motion to suppress his oral and written statements to the police. Defendant also contends that the proof at trial was legally insufficient to convict him of depraved indifference murder and that the conviction was against the weight of the evidence.
Following the shooting, defendant was interviewed by several investigators from the State Police and, over the course of the ensuing eight hours, gave a number of statements containing varying accounts of how the shooting occurred. When first questioned by police, defendant claimed that he did not know what happened. Later, he told the police that the victim shot himself. Still later, when interrogated at the station house, defendant claimed that he accidentally shot the victim while handling the shotgun. After defendant made this admission, police advised him of his Miranda rights and thereafter obtained a written statement from him incorporating those rights. In defendant’s final statement, he stated that he was playing the game Dungeons and Dragons and that he shot the victim while fantasizing that his friend was evil and that it was his job to exterminate evil. Following a pretrial Huntley hearing, the court concluded that defendant’s oral and written statements were voluntary and were not obtained in violation of defendant’s statutory or constitutional rights. The statements were admitted in evidence at defendant’s trial and he was convicted as charged.
At the outset, we note that the proof at trial was legally sufficient to support defendant’s conviction of depraved indifference murder under Penal Law § 125.25 (2). Defendant’s conduct in handling a loaded shotgun in the bedroom of his home while playing with a companion satisfies the requirement that he acted recklessly, i.e., that he was aware of and consciously disregarded a substantial and unjustifiable risk (Penal Law § 15.05 [3]; see, People v Gomez, 65 NY2d 9, 11). In addition, the defendant’s conduct in pointing the gun at his companion and pulling the trigger evidences a wanton indifference to human life sufficient to satisfy the depraved indifference element of the statute (see, People v Register, 60 NY2d 270, 274, cert denied 466 US 953). The risks posed by defendant’s conduct in this case and his callous indifference to them *927entitled the jury to conclude that he was guilty of murder (see, People v Gomez, supra).
Defendant’s conviction must be reversed and a new trial granted, however, because we conclude that the hearing court erred in denying defendant’s motion to suppress his oral and written statements to the police. It is well established that "special care must be taken to insure the rights of minors who are exposed to the criminal justice system” (People v Ward, 95 AD2d 351, 354; see, In re Gault, 387 US 1; Haley v Ohio, 332 US 596). Thus, "[i]t is well recognized that over and beyond the ordinary constitutional safeguards provided for adults subjected to questioning, the police must exercise greater care to insure that the rights of youthful suspects are vigilantly observed” (People v Hall, 125 AD2d 698, 701; see also, Matter of John C., 130 AD2d 246, 254). Both the Family Court Act and the Criminal Procedure Law contain provisions which require that, when a minor has been arrested, the police immediately notify a parent or other legally responsible person of the arrest and the place of detention (Family Ct Act § 305.2 [3], [4]; CPL 120.90 [7]; 140.20 [6]). Moreover, Family Court Act § 305.2 provides that a youth charged with juvenile delinquency cannot be questioned unless he and a person required to be notified pursuant to the statute have been properly advised of the child’s rights. The hearing court found that the questioning of defendant did not violate his rights under the Constitution and the statute because it was noncustodial, investigatory and essentially exculpatory. On our review of the record, we find that the police questioning in this case violated defendant’s statutory and constitutional rights, and that defendant’s statements to the police should have been suppressed.
The determination whether one is in custody at the time of police questioning and therefore entitled to an advisement of his rights for purposes of the Family Court Act depends upon whether he has been formally arrested or has had his freedom restricted to the degree associated with formal arrest (Matter of Stanley C., 116 AD2d 209, 212, appeal dismissed 70 NY2d 667). The test, of course, is not what the defendant thought, but rather what a reasonable person, innocent of any crime, would have thought had he been in defendant’s position (see, People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851; People v Hall, supra, at 700).
Although it is clear that the police did not formally arrest defendant until sometime between 5:30 a.m. and 6:00 a.m. on November 13, 1985, the record of the suppression hearing *928reveals significant limitations upon defendant’s freedom of movement to the degree associated with formal arrest. Defendant was initially questioned for 30 minutes in the presence of three officers in a police vehicle outside his home. At the time, defendant was upset, crying, and splattered with blood on his hands, face and clothing. Significantly, when, during the course of being questioned in the police car, defendant asked to be allowed to use the bathroom, he was given permission to do so, but was accompanied by two officers who physically accompanied him inside the bathroom and instructed defendant not to wash his hands. Police conceded that the reason for this demand was their desire to conduct a gunshot residue test on defendant’s hands. Defendant was then questioned in the bathroom by these officers for an additional period of approximately one-half hour at which time he told them that the victim had shot himself. This explanation was clearly incredible in view of the fact that the victim was shot in the back of the head. At this point, the police decided to transport defendant to the station house to conduct the gunshot residue test and to question him further.
When they arrived at the police station, defendant was photographed, the gunshot residue test was administered and defendant was taken to a juvenile interview room for questioning. Defendant’s aunt, however, who had accompanied him to the police station, was not permitted to accompany defendant into the interview room. When defendant’s parents arrived at approximately midnight, they likewise were not allowed to be present in the interview room while defendant was being questioned. Instead, the police came out and talked to them on several occasions. Although it is undisputed that defendant’s parents asked whether they needed a lawyer, the officer told them that it was their decision, and also advised them that he believed the shooting was accidental and that defendant would be going home soon. In the meantime, police continued to question defendant. Defendant’s parents did not speak with their son until after the police had completed taking a written statement. It was not until after defendant had admitted accidentally shooting the victim that the police first advised him of his Miranda rights. The police then took a formal written statement. Thereafter, when the police learned of discrepancies between defendant’s written statement and the evidence at the scene of the shooting, they reinterviewed defendant while his parents were again not permitted in the interview room. In addition, police asked defendant’s mother to get him some clean clothes because they were going to retain the bloodstained clothing defendant was wearing.
*929Thus, although defendant was not formally placed under arrest until 5:30 a.m. on November 13, 1985, the record reveals that this juvenile suspect was continuously questioned by a number of police officers for a period of over eight hours. It is quite apparent that the police, armed with certain inconsistencies in his story, sought to isolate defendant to obtain a confession to the crime. Courts have repeatedly held that the law will not tolerate police conduct aimed at isolating a youthful suspect from his family or other supportive adults (see, People v Hall, supra, at 701; People v Cavagnaro, 88 AD2d 938; People v Harrell, 87 AD2d 21, affd 59 NY2d 620). We conclude that the police overstepped the bounds of permissible conduct in isolating this youthful suspect from his family and therefore all his oral and written statements to the police must be suppressed.
Defendant’s testimony before the Grand Jury, made after he had consulted with counsel and had executed a waiver of immunity was clearly attenuated from the initial illegality and was properly received in evidence at defendant’s trial (People v Benson, 114 AD2d 506, lv denied 67 NY2d 649). However, in our view, this conclusion does not in any way render harmless the hearing court’s denial of defendant’s motion to suppress. (Appeal from judgment of Jefferson County Court, Aylward, J.—murder, second degree.) Present— Callahan, J. P., Denman, Green, Pine and Davis, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903612/ | Judgment unanimously affirmed. Memorandum: Contrary to defendant’s claim, he was not deprived of the effective assistance of counsel by the alleged failure of the trial court to inquire into the nature and seriousness of defendant’s conflict with his assigned counsel. When informed that defendant was dissatisfied with counsel, the court inquired as to the source of that dissatisfaction. Defendant complained that his assigned counsel had failed to obtain the names and addresses of three prosecution witnesses, that he wanted the names in order to file a criminal charge against one of them and that counsel had refused to honor his request to place such information on the record. The release of that information was within the sound discretion of the trial court and counsel’s failure to obtain it did not provide good cause to relieve counsel and assign a new one, particularly on the brink of trial (see, People v Medina, 44 NY2d 199, 207).
We have reviewed the remaining contentions raised by defendant, including those contained in his pro se supplemental brief, and find them to be without merit. (Appeal from judgment of Supreme Court, Monroe County, Boehm, J. — robbery, first degree, and other charges.) Present — Callahan, J. P., Denman, Green and Davis, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903613/ | Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered December 22, 2009, as amended January 19, 2010, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of three years, unanimously affirmed.
The court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly exercised its discretion when it precluded inquiry into one of defendant’s convictions and permitted inquiry into the underlying facts of a theft-related crime. The underlying theft-related crime was probative of defendant’s credibility, and it was not so similar to the present charges as to be unduly prejudicial.
An isolated phrase in the prosecutor’s summation that briefly mentioned defendant’s right to call witnesses was inappropriate, but it does not warrant reversal. The court’s instructions on the burden of proof were sufficient to prevent any prejudice.
Defendant’s contention that the victim’s identification of de*532fendant was improperly bolstered by an officer’s testimony about the identification is unpreserved, and we decline to review in the interest of justice. As an alternative holding, we find that it was defense counsel, not the prosecutor, who elicited the testimony and that the testimony was admissible in any event as background evidence, completing the narrative (see People v Morgan, 193 AD2d 467 [1st Dept 1993], lv denied 81 NY2d 1077 [1993]). Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903614/ | Order unanimously affirmed for reasons stated at Supreme Court, Cornelius, J. (Appeal from order of Supreme Court, Monroe County, Cornelius, J. — CPL 330.30 [2].) Present — Callahan, J. P., Denman, Green and Pine, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/571729/ | 948 F.2d 1282
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Anthony J. RANKINE, Ayj-oyu-zjb, and in the name of theU.S. Congress, and in the name of all aliens in asimilar situation as Rankine, Plaintiff-Appellant,v.David L. MILHOLLAN, Individual and Officer; Mary M. Dunne,Individual and Officer; Michael J. Heilman, Individual andOfficer; Charles E. Auslander, Individual and Officer;Rebecca H. Thompson, Individual and Officer; RobertGodshall, Individual and Officer; Jesse M. Sellers,Individual and Officer; Deanna Rodriquez, Individual andOfficer; Douglas Bow, Individual and Officer; FlorenceJones, Individual and Officer; Unnamed Minions Number 1 to50, as Individuals and Officers; Attorney General of theUnited States, in the capacity of an officer vested byCongress and as caretaker of Title 8 and similar laws;Unnamed Policy Officers of the Department of Justice, (inlike capacities as the Attorney General); the United StatesDepartment of Justice, and Executive Office of ImmigrationReview & Immigration and Naturalization Service, (in thecapacity of an executive agency, the custodial agency of INSrecords, as well as caretaker agency of Title 8 and allother laws and treaties, aiding or promoting the rights ofpersons), defendants, for damages; United States ofAmerica, defendant for declaratory and injunctive relief,Defendants-Appellees.
No. 91-2035.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 11, 1991.Decided Nov. 20, 1991.
Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, Chief District Judge. (CA-90-22-ST-C-V)
Anthony J. Rankine, appellant pro se.
Clifford Carson Marshall, Jr., Office of the United States Attorney, Asheville, N.C., for appellees.
W.D.N.C.
AFFIRMED.
Before DONALD RUSSELL, SPROUSE and NIEMEYER, Circuit Judges.
OPINION
PER CURIAM:
1
Anthony J. Rankine appeals from the district court's order dismissing this action on the basis of jurisdictional defects and sovereign immunity. Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Rankine v. Milhollan, CA-90-22-ST-C-V (W.D.N.C. Nov. 1, 1990 and Jan. 22, 1991). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. The motions to expedite appeal, to appoint counsel, and to expedite oral argument are denied.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5907539/ | Judgment, Supreme Court, New York County (Arthur Blyn, J.), entered on July 29, 1987, unanimously affirmed for the reasons stated by Arthur Blyn, J., without costs and without disbursements. Concur — Ross, J. P., Carro, Asch, Kassal and Smith, JJ. [See, 136 Misc 2d 892.] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903615/ | Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: Defendant appeals from a judgment convicting him of assault in the second degree for pistol-whipping the complainant, Jamie Ramos. The incident arose from a racial dispute between defendant, a black man, and a group of Hispanic men who disapproved of defendant’s relationship with an Hispanic woman. The incident occurred when, as defendant was leaving his girlfriend’s house, he was confronted by 4 or 5 Hispanic men. At trial, defendant asserted the defense of justification and testified that the men were armed, that they rushed him, that he grabbed a gun from one of them, that all but Ramos fled, and that he repeatedly struck Ramos in the head with the gun when Ramos brandished a meat cleaver. Of the several issues raised by defendant on appeal, only one requires reversal.
The court erred in refusing to allow defendant’s girlfriend to testify concerning threats made by the victim against *930defendant. The court disallowed that testimony in the mistaken belief that the victim’s threats were admissible only if communicated to defendant. It is well settled, however, that evidence of the victim’s threats is admissible, irrespective of whether the threats were communicated to the defendant, where such evidence is adduced to show the state of mind of the victim and to raise the inference that he, not the defendant, was the aggressor (People v Miller, 39 NY2d 543, 549; Stokes v People, 53 NY 164, 174). As a result of the court’s erroneous evidentiary ruling, and because of the closeness of the factual questions on the defense of justification, we exercise our discretion and reverse the conviction in the interest of justice. (Appeal from judgment of Supreme Court, Monroe County, Bergin, J. — assault, second degree.) Present — Callahan, J. P., Denman, Green, Pine and Davis, JJ. | 01-03-2023 | 01-13-2022 |
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