The Court of Appeals has been busy

I've been sick for the past week.  But I'm feeling much better now.  Thanks for asking.  Jerks.

In the past few weeks, the New York Court of Appeals has deluged us with decisions; covering all sorts of procedural niceties.

You know what, since I've been out so long, I'm going to cover all of the decisions, even the substantive ones.  Of course, by "cover" I mean that I'll write two or three words describing the issues, forcing you to read the decisions yourselves.  I'll get into the procedural ones though.

People v Hardy, 2009 NY Slip Op 07329 (Ct. App. 2009)–Guy walks out of court in handcuffs, he wasn't supposed to, it's escape.  Matter of Joan Hansen & Co., Inc. v Everlast World's Boxing Headquarters Corp., 2009 NY Slip Op 07328 (Ct. App. 2009)– "arbitrator may not reconsider an award — regardless of whether the
request is couched as a clarification or modification — if the matter
was not previously raised in arbitration."  Matter of Gomez v Stout, 2009 NY Slip Op 07327 (Ct. App. 2009)–"Pursuant to CPLR 7804 (g), Supreme Court transferred the matter to the Appellate Division."  Check out the first sentence from Smith's concurring opinion "I join the Court's unanimous opinion, but write separately to express my unhappiness with the result we are forced to reach."  Matter of Transitional Servs. of N.Y. for Long Is., Inc. v New York State Off. of Mental Health, 2009 NY Slip Op 07326 (Ct. App. 2009)–"It is well settled that when an agency acts within its area of
expertise in interpreting statutes it is responsible for administering,
its construction of those statutes is to be upheld if its decision is
not irrational or unreasonable." Matter of Buffalo Professional Firefighters Assn., Inc. v Masiello, 2009 NY Slip Op 07324 (Ct. App. 2009).  Trust
for Certificate Holders of Merrill Lynch Mtge. Invs., Inc. Mtge.
Pass-Through Certificates, Series 1999-C1, by & through Orix
Capital Mkts., LLC v Love Funding Corp.
, 2009 NY Slip Op 07323 (Ct. App., 2009)–Second Circuit punted some questions to the Court of Appeals; involves "champerty" (Judiciary Law
§ 489).  St. Lawrence Factory Stores v Ogdensburg Bridge & Port Auth., 2009 NY Slip Op 07454 (Ct. App., 2009)–"In land transactions, as in other contracts, the rule is the one stated in the Restatement (Second) of Contracts § 349…The principle expressed in the Restatement has long been part of New York law).  Matter of Crucible Materials Corp. v New York Power Auth., 2009 NY Slip Op 07451 (Ct. App. 2009)–statutory construction.  Matter of 47 Ave. B. E. Inc. v New York State Liq. Auth., 2009 NY Slip Op 07484 (Ct. App., 2009)–it's interesting because of what isn't therePeople v McNair, 2009 NY Slip Op 07483 (Ct. App. 2009)–recital cast doubt on guilt, court had to conduct further inquiry, it did, defendant didn't withdraw, waived everything else.  People v Arafet, 2009 NY Slip Op 07482 (Ct. App. 2009)–Mostly Mollineux (sort of Mollineux) and a dissent.    Roberts v Tishman Speyer Props., L.P., 2009 NY Slip Op 07480 (Ct. App. 2009)–Taxes.  Not touching this one. 

Salm v Moses, 2009 NY Slip Op 07479 (Ct. App. 2009)

Here, we perceive no abuse of discretion in Supreme Court's evidentiary
ruling. Such evidence may be excluded if the trial court finds that the
risk of confusion or prejudice [*3]outweighs the advantage in receiving it (see Kish v Board of Educ. of City of N.Y.,
76 NY2d 379, 384-385 [1990]). In this case, plaintiff speculated during
the colloquy that a verdict in defendant's favor could result in a $100
benefit — at the time of the expert's death, disability or retirement —
based on the expert's shareholder status in OMSNIC. The trial court's
finding that any such financial interest was likely "illusory" and that
the possibility of bias was attenuated was reasonable on this record.
Absent a more substantial connection to the insurance company — or at
least something greater than a de minimis monetary interest in the
carrier's exposure — the court did not engage in an abuse of discretion
in precluding the testimony. We note that a voir dire of an expert
outside the presence of the jury can better aid the court in exploring
the potential for bias

Matter of Garth v Board of Assessment Review for Town of Richmond, 2009 NY Slip Op 07325 (Ct. App. 2009)

Supreme Court denied the Board's motion to dismiss. A unanimous
panel of the Appellate Division reversed, granted the Board's motion,
and dismissed the petition, concluding that "the filing and service of
a notice of petition in a tax certiorari proceeding lacking a return
date is jurisdictionally defective" (52 AD3d 1261 [internal quotation
marks, citations and brackets omitted]). We granted petitioner's motion
for leave to appeal and now reverse.

Pursuant to RPTL 704 (1), a real property owner may commence a
special proceeding to challenge a tax assessment by filing a petition
along with a notice of petition returnable not less than 20 nor more
than 90 days after the service of the petition and notice of petition.
CPLR 403 (a) provides that a "notice of petition shall specify the time
and place of the hearing on the petition."
In practice, it is sometimes
difficult for a litigant to set a proper return date prior to service
of the petition and notice of petition because the judge — whose
calendar preferences normally dictate the choice of the return date —
may not yet have been assigned to the case (see Siegel, NY Prac
§ 553, at 952 [4th ed]). Adding to this practical difficulty is the
short, 30-day statute of limitations in RPTL article 7 proceedings (see
RPTL 702 [2]). Thus, a petitioner attempting to commence a tax
certiorari proceeding may face a procedural dilemma — timely file the
petition and notice of petition without knowledge of an actual return
date, or wait until <br>the assignment of a judge and return date and risk
the expiration of the limitations period. 


It is settled that personal jurisdiction may be absent where a party improperly commences a proceeding or action (Matter of Fry v Village of Tarrytown, 89 NY2d 714 [1997]; see Ballard,
6 NY3d at 664). Not all defects in the commencement process, however,
result in a loss of personal jurisdiction
. Our decision in Matter of Great E. Mall v Con-don
(36 NY2d 544 [1975]) is instructive.


Similar to the respondents in Great E. Mall, the Board
here has failed to allege any prejudice that resulted from the failure
to include a return date in the notice of petition.
The return date
undoubtedly serves a necessary purpose in special proceedings — to put
the respondent on notice as to the date before which the responsive
papers should be served. This concern, however, is not so compelling in
RPTL article 7 proceedings where the allegations contained in the
petition are deemed denied if the respondent fails to timely serve an
answer (see RPTL 712 [1]), thereby precluding entry of a
judgment against the respondent in the case of a default. Thus, in the
context of a tax certiorari proceeding, we are hard-pressed to see how
the assessing authority will suffer any prejudice as a result of the
failure to include a return date.
Indeed, the notice of petition in National Gypsum,
which contained an admittedly fabricated but plausible return date,
failed to advise the respondent of the time and place of the hearing.
In that regard, it was no more useful or informative than the notice of
petition here, which omitted a return date. It would be incongruous for
us to approve of a fictitious return date yet condemn an absent one.

We therefore conclude that personal jurisdiction is not lacking
in an RPTL article 7 proceeding where the petitioner omits the return
date from the notice of petition. This conclusion is entirely
consistent with the view in Great E. Mall that mere technical
irregularities in the commencement process should be disregarded if a
substantial right of a party is not prejudiced. Further, it is a
natural extension of National Gypsum, which, in recognition of
the practical difficulties that arise when commencing these types of
proceedings, forgave the pleading infirmity. To require strict
compliance with CPLR 403 (a) in this context would mean that, under
certain circumstances, petitioners would be foreclosed from judicial
review of their tax assessments through no fault of their own. We find
that approach unduly harsh and contrary [*5]to our historically liberal construction of pleading and procedure in tax certiorari proceedings [FN2].
While our conclusion applies in RPTL article 7 proceedings where
petitioner is unable to designate a return date, we have no occasion to
address the rules applicable to other types of special proceedings.

IDT Corp. v Tyco Group, S.A.R.L., 2009 NY Slip Op 07481 (Ct. App. 2009)

At the outset, we agree with IDT that the parties entered into a
valid settlement agreement. "[S]tipulations of settlement are
judicially favored and may not be lightly set aside" (Will of Kanter, 209 AD2d 365 [1st Dept 1994] [internal citations omitted]). As we said in Hallock v State of New York
(64 NY2d 224, 230 [1984]), "strict enforcement [of settlement
agreements] not only serves the interest of efficient dispute
resolution but is also essential to the management of court calendars
and integrity of the litigation process."
Although there was a valid
settlement agreement in this case, Tyco's obligation to furnish
capacity never became enforceable because agreed-upon conditions, were
not met.

"[A] contract is to be construed in accordance with the
parties' intent, which is generally discerned from the four corners of
the document itself. Consequently, 'a written agreement that is
complete, clear and unambiguous on its face must be enforced according
to the plain meaning of its terms' (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], [*4]quoting Greenfield v Philles Records, 98 NY2d 562, 569 [2002])." Further,

"a condition precedent is 'an act or event, other than
a lapse of time, which, unless the condition is excused, must occur
before a duty to perform a promise in the agreement arises' (Calamari
and Perillo, Contracts § 11-2, at 438 [3d ed]; see Restatement [Second] of Contracts § 224; see also Merritt Hill Vineyards v Windy Hgts. Vineyard,
61 NY2d 106, 112-113). Most conditions precedent describe acts or
events which must occur before a party is obliged to perform a promise
made pursuant to an existing contract, a situation to be distinguished
conceptually from a condition precedent to the formation or existence
of the contract itself (see M.K. Metals v Container Recovery Corp., 645 F2d 583)"

(Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]).

Here, the settlement agreement contemplated the occurrence of
numerous conditions, i.e., the negotiation and execution of four
additional agreements, most importantly, the IRU. Regarding the IRU,
the clear intent of the parties was that it had to be executed before
any handover of capacity. As such, it cannot be said that defendants
breached the settlement agreement by merely proposing an IRU which
allegedly contained terms inconsistent with settlement.

Nevertheless, under the settlement agreement, the parties were
required to negotiate the terms of the IRU and other agreements in good
Despite the fact that (1) the parties negotiated various open
terms on and off for almost three years and (2) each side had a right
to require conformance with Tyco's standard agreements, except to the
extent that any term conflicted with the settlement agreement — i.e.,
the parties had an alternative mechanism for determining those terms if
the negotiations were unsuccessful: the IRU was never executed.
Finally, the record does not support a finding that Tyco breached any
of its obligations.

Phew.   I'll add the tags and CPLR rules and sections letter.

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