Liberty Affordable Housing Inc. v. Maple Court Apartments

In this appeal, the Fourth Department examined whether the Court of Appeals decision in Rovello v. Orofino Reality Co., which held that under New York Civil Practice Law and Rules 3211(a)(7) “‘summary dismissal is appropriate . . . when the defendant’s evidentiary submissions establish conclusively that plaintiff has no cause of action,’” survived the Court of Appeals subsequent decision in Miglino v. Bally Total Fitness of Greater New York, Inc.

In 2006, the Plaintiff, Maple Court Apartments, contracted with the Defendant, Liberty Affordable Housing, Inc., for the sale of real property. The Plaintiff was unable to secure funding by the closing date, or by the December 31, 2007, extension to the closing date. In April 2009, the Defendant sent the Plaintiff a letter in which the Defendant made clear that the purchase agreement was terminated and that the Defendant would market the property to other buyers. Two years later, in 2011, the Plaintiff secured funding and made another offer on the property. In a September, 2011, letter to the Defendant, the Plaintiff indicated the need for a new purchase agreement. The Defendant rejected the Plaintiff’s offer and accepted a higher offer from a third party.

The Plaintiff then commenced a suit for specific performance on the original 2006 contract. The Defendant moved for dismissal under N.Y. C.P.L.R. 3211(a)(7), which authorizes a court to dismiss a complaint when the opposing party fails to state a cause of action. In order to show the 2006 purchase agreement was invalid and therefore the Plaintiff had no cause of action, the Defendant submitted the 2009 letter and the 2011 letter to the court. The trial court dismissed the Plaintiff’s suit, finding it was clear that the original 2006 purchase agreement was invalid. The Plaintiff then appealed, arguing “that Miglino fundamentally changed the parameters of 3211(a)(7) and effectively barred the consideration of any evidentiary submissions outside the four corners of the complaint.”

The Plaintiff’s argument was based on the language in Miglino where “the Court cited Rovello for the proposition that ‘3211(a)(7) . . . limits [courts] to an examination of the pleadings to determine whether they state a cause of action’” and therefore found “‘the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits.’” The Plaintiff argued that this language from Miglino prohibits a court from considering evidentiary submissions when ruling on a 3211(a)(7) motion.

The court held for the Defendant, finding that Miglino did not change Rovello, but simply applied its framework. The court reasoned that “Miglino was ‘not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits’ because the evidentiary submissions were insufficiently conclusive, not because they were categorically inadmissible in the context of a 3211(a)(7) motion.” This reading of Miglino was in line with similar decisions in the First and Second Departments. Therefore, the court found it was proper for the supreme court to consider the documents the Defendant submitted in support of its motion to dismiss. Turning to the substantive question, the court found the Defendant’s evidentiary submissions conclusively showed the Plaintiff was not willing and able to perform its end of the contract by the contract’s closing date or a reasonable time afterward. Therefore, the Plaintiff had no cause of action for specific performance and the supreme court properly dismissed the suit under 3211(a)(7).

998 N.Y.S.2d 543 (4th Dep’t. 2015)

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People v. Marquan M.

This appeal involves a sixteen-year-old high school student that anonymously posted pictures of high school classmates and other adolescents with sexually explicit descriptions of their personal lives on Facebook. A police investigation revealed defendant Marquan M. as the poster. The defendant admitted to the online activity, and was charged under Albany County’s cyberbullying law. The defendant moved to dismiss on the grounds that the law was unconstitutionally violative of his free speech rights under the First Amendment to the United States Constitution. Albany County conceded that parts of the law was unconstitutional, but that the law was severable, and the Court could delete the violative language.

Judge Graffeo, writing for the majority, reasoned that the law was overbroad, facially unconstitutional, and was not severable. The majority found that the text of the law was so broad as to encompass speech by adults and corporate entities, although the purpose of the law was to remedy the detrimental effects of cyberbullying on school children. The majority also wrote that while it was possible for the Court to sever the offensive provisions, it would be an impermissible use of judicial authority to do so. The law would need significant modification in order to be valid, and would bear “little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the position . . . .” The majority thus held the cyberbullying law overbroad and facially invalid under the Free Speech Clause of the First Amendment as drafted.

Judge Smith, writing for the dissent, reasoned that the violative provisions of the law could be severed, and the remainder of the law would be constitutionally valid. The dissent agreed that the terms of the law were vague and overbroad but insisted that crossing them out was preferable. The dissent thought that the majority focused too much on poor draftsmanship of the law, and should have focused on what the dissent thought was the crux of the case: whether Albany County could constitutionally prohibit certain kinds of communication—namely, cyberbullying. The dissent would answer this question in the affirmative, arguing that while the First Amendment protects extremely obnoxious forms of speech, speech that is designed to inflict serious emotional injury is only permitted when directed at matters of public concern; here, there was only “private rage or spite.”

994 N.Y.S.2d 554 (N.Y. 2014)

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People v. Johnson

This appeal addresses whether a defendant’s right to counsel has been violated when he attempts to gain leniency for one crime by discussing another crime and ultimately incriminates himself for the other crime in a meeting where his attorney was not present. Defendant was arrested for burglary, and told detectives that he had information about an earlier, unrelated stabbing in attempt to obtain leniency. This led to a meeting between defendant, his attorney, police officers, and an assistant district attorney. The People agreed that they would not use any statement the defendant made in a prosecution brought against him in return for his full cooperation, but included a clause that the agreement would be null and void if the defendant violated any of its terms.

In the meeting, the defendant told law enforcement and the assistant district attorney that a friend of his had performed the stabbing, and that he was in jail at the time the stabbing occurred. However, after fact checking the police found that defendant was released ten days prior to the stabbing. The police were hesitant, but decided to wire up the defendant to speak to the friend of his that he claimed did the stabbing.

In a separate meeting, defendant met with law enforcement without his counsel present, his counsel believing that this was not an interrogation but rather a meeting to discuss strategy for the upcoming wire situation. However, when police spoke to defendant, his story changed several times, with the defendant ultimately admitting he was actually the one who had done the stabbing. Defendant was then read his Miranda warnings, and signed a typed statement. Defendant was later arrested and charged with attempted murder and assault, to which he was found guilty of both crimes. The trial court had denied his motion to suppress, and the appellate division affirmed.

When this case came before the New York Court of Appeals however, the Court reversed, ordered that the statements in question be suppressed, and ordered a new trial.  The court reasoned that defendant’s right to counsel encompassed his conversations with law enforcement regarding the stabbings since the conversations were an attempt to gain leniency for the burglary case. Therefore, defendant would have needed to waive counsel for the police to continue questioning him. There was never a waiver that occurred, so therefore the statements should be suppressed.

2 N.Y.S.3d 825 (N.Y. 2014)

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LM Bus. Assocs., Inc. v. State of New York

The State Insurance Fund, the State Police, and the Workers’ Compensation board investigated Mark Boerman for fraudulent activities. During the investigation, the State Police were granted a search warrant and searched the claimants’ offices on April 5, 2001. During execution of the warrant, a number of computers that were vital to the claimants’ businesses were removed from the office. Mr. Boerman was indicted over a year later and moved to have the computers returned. At no time before Mr. Boerman’s indictment did the claimants bring a motion to have the property returned. Following Mr. Boerman’s indictment in April 2003, the court granted the motion to have the computers returned, but the computers weren’t returned for several months. The claimants argued that the loss of computers for that time period resulted in the business failing.

The claimants brought suit seeking damages for conversion of the seized computers, negligent misrepresentation, and constitutional tort. The negligent misrepresentation claim stemmed from alleged promises made by agents during the search and in the days following that the computers would be returned as soon as possible following the copying of the data on the computers. After hearing the case, the Court of Claims in a non-jury trial determined that the defendant was liable for conversion and negligent misrepresentation.

The court explained that conversion takes place when a person intentionally and without authority exercises control over the property of another person; however, in this case, the defendant received a search warrant, which specifically authorized seizure of the computers, and the warrant placed no time limits on the amount of time the defendant could retain the property for. Because the claimants never challenged the search warrant, the search warrant provided authorization to seize the property until the County Court ordered the property be returned following Mr. Boerman’s motion. This case can be distinguished from other cases, such as Della Pietra v. State of New York, because the property in this case was seized pursuant to a valid search warrant. Even if the defendant did not have a legitimate purpose in retaining the seized computers, the defendants did not have the power to return the property without judicial authorization.

The claim for negligent misrepresentation would fail as a matter of law because the relationship between an investigator and the target of his investigation, as is present in this case, does not qualify as special relationship of confidence and trust, which would be required under the statute. The court reversed the judgment and dismissed the amended claim.

990 N.Y.S.2d 619 (4th Dep’t. 2015)

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Matter of Ford v. New York State Racing and Wagering Board

This appeal addresses the legal grounds for rulemaking regarding out-of-competition race horse testing and whether such testing would involve unconstitutional intrusions by testing agents. In 2009 the defendant, the New York State Racing & Wagering Board (“Board”), promulgated a rule in response to the introduction of a new generation of doping agents into the competitive world of horse racing. The new drugs could enhance horse race speeds while eluding race day detection. To combat these new drugs, the defendant implemented a rule requiring race horse owners and trainers to make harness race horses available for random testing days before the race

The petitioners commenced this action prior to the rule’s effective date. The petitioners argued that creating such a rule was not authorized by the respondent’s enabling legislation, and that the rule constituted a constitutionally unreasonable intrusion upon off-track farms which stabled race horses. The Supreme Court found that the Board had acted in excess of its legislatively delegated power, while the Appellate Division held that the rule was valid under the Board’s “broad, legislatively conferred authority to regulate and supervise race meets . . . [where] wagering is permitted.”

During litigation, the challenged rule was amended. The Court therefore had limited review power, and confined its review to whether the Board’s promulgation of any rule mandating out-of-competition testing, and whether the sort of testing regimen proposed would be a constitutionally unreasonable intrusion by the Board’s agents. The Court then examined the long history of horse doping regulations and how legislation had struggled to keep up with changes in doping technology that would create regulatory loopholes that posed a threat to the integrity of the sport and the health and safety of both horses and jockeys.

The petitioners argued that tests were available which would avoid the intrusion issue; tests which—on race day—could pick up traces of the new protein-based enhancers, which could be administered long before the race and which would previously undetectable except for immediately after being administered. The court stated that though the tests existed, they were extremely expensive and their results questionable. The court stated it would be unreasonable to require the Board to use these tests, and instead applied a rational basis test to the Agency’s decision.

The Court rejected the petitioner’s view that section 301(2)(a) demonstrated that the Board only had testing authority at race meetings. It stated that the legislature may give reasonable discretion to administrative officials to determine what methods were to be used, and that the language of the statute explicitly allowed for general supervision over the race meetings. The plain language of the legislation allowed specifically for regulatory action to avoid the circumvention of existing rules. The use of long-term drugs that could pass game day testing, according to the Court, was the exact type of evasion that the legislation envisioned.

The Court concluded by stating that based on both the language of the text and legislative intent, random drug testing was a reasonable exercise of administrative authority and this authority extended both to private horse farm owners and to those licensed to board race horses. Those who stable race horses on their property could “reasonably be deemed to have relinquished a privacy-based objection” by opening up their property to horses of such a regulated nature.

24 N.Y.3d 488 (N.Y. 2014)

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Floyd v. City of New York

This appeal addresses whether public-sector unions may intervene into a litigation where the actual parties to that litigation have agreed to a settlement. On August 12, 2013, after a bench trial, the district court found that the City of New York (“City”) had violated the Fourth and Fourteenth Amendments by acting with “deliberate indifference” toward the New York City Police Department’s (“NYPD”) practice of making suspicionless “stops” and “frisks” and by adopting “a policy of indirect racial profiling by targeting racially defined groups for ‘stops’ and ‘frisks.’” Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013). The district court issued an order imposing remedies in the form of various reforms to the NYPD’s “stop and frisk” practices. In September of 2013, various police unions filed notices of appeal moved to intervene in the district court. Thereafter, a newly elected mayor reached a settlement with the Plaintiffs. The district court issued an order denying the police unions’ motion to intervene finding that the motions were untimely and that they did not assert a legally protectable interest.

On appeal, the Court of Appeals affirmed the district court’s decision. To be granted intervention as of right or by permission, an applicant must (1) timely file an appeal, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action. Fed. R. Civ. P. 24(b). Failure to satisfy any one of the four requirements is sufficient ground to deny the application. The Court of Appeals concluded that the district court acted within its discretion in denying the unions’ motions to intervene as of right and by permission.

The court held that the unions did not timely move to intervene because they knew or should have known of their asserted interests in their members’ reputations and collective bargaining rights well before they filed their motions. Since there was years of extensive public filings and intense media scrutiny, the unions should have been put on notice of the potential dangers that these cases posed on their interests. The court also agreed with the district court that by allowing the unions to intervene this late would substantially prejudice the existing parties and unduly encroach upon the City’s inherent discretion to settle disputes against it.

Lastly, the court held the unions’ interests in their members reputations and collective bargaining rights are, as a matter of law, too remote from the “subject of the action” to warrant intervention as a “party.” The interest in their members’ reputation is too remote because the lawsuits principally targeted the City, not individual police officers. The interest in the unions’ collective bargaining rights are too remote because the remedial order did not have an impact on questions of workload, or staffing and employee safety, that are within the unions’ collective bargaining rights.  Accordingly, the Court of Appeals affirmed the district court’s ruling.

770 F.3d 1051 (2d Cir. 2014)

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People v. DeLee

This appeal addresses the proper remedy for a repugnant verdict. The defendant Dwight DeLee, was indicted for second-degree murder, second-degree murder as a hate crime, and third-degree criminal weapon possession by a Syracuse grand jury. He was convicted of the lesser charge of first-degree manslaughter as a hate crime, and acquitted of the lesser charge of first-degree manslaughter. After the jury verdict, defense counsel moved to set aside the verdict as repugnant. Defense argued that due to the two convictions sharing the same basic elements, he could not be guilty of first-degree manslaughter as a hate crime and not guilty of ordinary first-degree manslaughter. The People submitted an affidavit of the jury’s foreperson as evidence that the jury must have concluded the ordinary first-degree manslaughter charge was superfluous when convicting on a first-degree murder as a hate crime charge. At sentencing, the judge denied the defense’s motion to set aside the verdict as repugnant and the defendant appealed. The Appellate Division affirmed, however reversed the defendant’s conviction for first-degree manslaughter as a hate crime and dismissed the first count of the indictment. The Appellate Division reasoned that by acquitting the defendant of first-degree manslaughter, the jury found that the People had failed to prove the elements beyond a reasonable doubt. Thus, the conviction of first-degree manslaughter as a hate crime was inconsistent, as it required the same elements with one added element. The People appealed with permission of the lone dissenting justice.

Here, the Court held that the jury determination was inconsistent, and therefore repugnant. The Court reasoned that all of the elements of first-degree manslaughter are included in the elements of first-degree manslaughter as a hate crime. To find the defendant guilty of first-degree manslaughter would mean that at least one element of the crime has not been proven beyond a reasonable doubt.  The Court found the People’s argument unpersuasive and the jury instructions to consider the charges separately, clear.  On the issue of the appropriate remedy, the Court found that no constitutional or statutory provision mandated reversal for a repugnancy error.  The Court granted the People leave to resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury.

24 N.Y.3d 1119 (N.Y. 2015)

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Reis v. Volvo Cars of North America

This appeal addresses the proper jury charge for defective design of product suits. The plaintiff, Manuel Reis was pinned against a wall and lost his left leg after his friend’s 1987 Volvo station wagon lurched forward upon starting the engine. The plaintiff initiated this action, claiming that Volvo was responsible for this accident for failing to install a starter interlock in their cars with manual transmissions, or at least, warning users that the car could lurch forward when the engine is started while the car is in first gear. The plaintiff offered expert testimony stating that many automobile manufacturers had begun installing starter interlock mechanisms in their 1987 manual transmission cars. Volvo, on the other hand, justified their decision not to install starter interlocks because it would prevent the car from moving quickly in an emergency and the likelihood of a situation such as plaintiff’s occurring was very low. The jury was charged with PJI 2:15 (Common Law Standard of Care – Defendant Having Special Knowledge) and PJI 2:16 (Common Law Standard of Care – Customary Business Practices) despite Volvo’s objections. The jury found that Volvo was negligent in failing to install a starter interlock, but also found that the 1987 station wagon was reasonably safe without the device installed. The plaintiff was awarded $10,000,000 in damages.

Before judgment was entered however, the Appellate Division decided Volvo’s appeal from the Supreme Court’s decision to deny summary judgment, and dismissed plaintiff’s failure to warn claims. Thus, the trial court set aside that verdict, but entered judgment on the design defect claim. This decision was then appealed by both parties, and the Appellate Division held that the trial court properly set aside the failure to warn claim, and did not err in issuing PJI 2:15 and 2:16.  Two justices dissented, and would have found that jury charge 2:16 was inappropriate such that a new trial was warranted. Volvo appealed this decision under CPLR 5601(a), which provides that an appeal may be made when two Justices dissent in favor of the appellant and that all issues decided against appellant are subject to review.

Here, the Court found that jury charge PJI 2:15 was given in error because it pertains to malpractice claims, not design defect claims. Malpractice claims use a community standard as opposed to the reasonable person standard on which design defect claims must adhere. The Court found that this mistake could have impacted the jury’s decision because the jury returned an inconsistent finding of guilt on two claims that were substantially identical. The Court also examined PJI 2:16, and found that it was properly given because it instructed the jury to consider the totality of the evidence, not to simply find guilt because of a failure to conform to the community standards. The Court held that a determination that PJI 2:15 was issued in error necessitated a new trial and reversal.

993 N.Y.S.2d 672 (N.Y. 2014)

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Capretto v. City of Buffalo

This appeal arises from an action in which plaintiff sought damages for injuries she sustained when she tripped and fell as a result of broken concrete located in the driveway portion of a sidewalk. The issue on appeal is which party had a duty to correct the large area of broken concrete that constituted a dangerous and long-standing condition. The driveway is located outside of a baseball stadium. The property is leased to Bison Baseball (“Bison”) from the City of Buffalo. Immediately next to the driveway is a parking garage owned by Seneca One Realty LLC (“Seneca”) whom contracted with Allpro Parking (“Allpro”) to service and operate the parking garage. In the original action, the Supreme Court of Erie County, granted Seneca and Allpro’s motions for summary judgment, and granted in part Bison’s summary judgment. The plaintiff and Bison both appealed the order.

The court rejected Bison’s contentions about the negligence claims against them, holding that although generally liability for dangerous and defective conditions to public sidewalks is placed on municipalities, there are circumstances that merit exceptions. Some of the exceptions are: (1) when the sidewalk is constructed in a special manner for the benefit of the abutting owner; (2) where the abutting landowner negligently constructed or repaired the sidewalk; and (3) where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty.

In this case, the dangerous condition existed on the portion of the sidewalk that abuts the property owned by Seneca, but is also located in the apron of the driveway that provides access to the property leased by the Bison defendants. The court concluded that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control special use of the driveway and did not create the defect by any alleged special use. Rather, based on the evidence it was plausible to conclude that the driveway was constructed for the exclusive use and benefit of the Bison defendants’ leased property. The evidence highlighted that the only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison.

The court also concluded that the lower court properly dismissed the common-law negligence claims against Seneca and Allpro but erred in dismissing those claims against them that were based on The Charter of the City of Buffalo (“the charter”). The court agreed that although Allpro employees may have barricaded the area of the dangerous condition on occasion, such conduct did not create a common law duty of care. The court disagreed with Seneca and Allpro’s contention that they did not have a duty under the charter which explicitly charged all owners or occupants abutting a public street with the duty to maintain and repair the sidewalk. It held that both Seneca and Allpro as the abutting owner and occupant, respectively had a duty under the charter, despite the dangerous condition being situated on the driveway portion of the sidewalk.  Lastly, the court also affirmed the dismissal of Bison defendants’ cross claim for contractual indemnification as it believed that the acts or omissions at issue regarding the property were covered by the lease.

1 N.Y.S.3d 615 (4th Dep’t 2015)

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In re JP Morgan Chase Bank, N.A.

This appeal addresses a motion to dismiss based on a breach of fiduciary duty claim. In 1983, Lucy Gair Gill’s will established a trust for the benefit of her daughter, Mary Gill Roby and her grandchildren and great-grandchildren. The trust terminated upon Mary Gill Roby’s death. Before her death, she exercised her power of appointment to have the trust assets distributed to her three children and two grandchildren. Three of the beneficiaries objected to the accounting and brought a claim for breach of fiduciary duty against the trustee JPMorgan Chase. The objectants argued that the “petitioner’s refusal to consider investment in nonproprietary funds was a breach of fiduciary duty that caused objectants “great loss.””

The Monroe County Surrogate’s Court granted JPMorgan Chase Bank’s motion to dismiss and held that the defense of laches barred the objections. The Surrogate further held that the open repudiation rule did not apply to the defense of laches. The Fourth Department affirmed the motion to dismiss on other grounds. The court expressly found that the open repudiation rule applies to the defense of laches. The court concluded, “that petitioner’s refusal to consider investing trust assets in nonproprietary funds in accordance with the desires of the beneficiaries did not constitute an open repudiation of petitioner’s role as fiduciary.”

The court instead affirmed the motion to dismiss for a failure to state a claim. The court rejected each objections in the objectants’ breach of fiduciary duty claim. First the court looked at the claim that JPMorgan Chase breached its fiduciary duty by not investing in nonproprietary funds after the beneficiaries asked. On that objection it found that the Prudent Investor Act allows for trustees to invest in proprietary funds. Furthermore, the court found that an underperforming investment alone is insufficient to meet the standard for breach of fiduciary duty. The court reiterated that the test is prudence and not performance. Here, the objection was insufficient to support the breach claim.

The court went on to reject the objectors’ objection based on JPMorgan Chase not considering tax consequences. On this objection, it found that JPMorgan Chase did consider the tax consequences and communicated the investment strategy to the objectants in letters. The court also rejected the objections based on failure to communicate and failure to advise beneficiaries on changes in the law. The court found on those objections that that “the record supports the conclusion that the beneficiaries merely disagreed with the strategy as properly communicated by petitioner.” Finally the court found that there was a failure to state a claim the creation of a litigation reserve.

996 N.Y.S.2d 816 (4th Dep’t 2014)

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