Category: Uncategorized

CPLR § 4506 Eavesdropping evidence; admissibility; motion to suppress in certain cases.

Festa v Festa, 2010 NY Slip Op 06777 (App. Div., 2nd 2010)      

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Rockland County (Berliner, J.), dated April 21, 2009, which, inter alia, granted those branches of the defendant's motion pursuant to CPLR 4506 which were to preclude him from presenting certain evidence at trial and granted those branches of the motion of nonparty Kenneth Svensson which were, among other things, to preclude him from, inter alia, disseminating or publishing certain evidence.

ORDERED that the appeal is dismissed as academic, without costs or disbursements.

As this action has been settled, any determination by this Court will not directly affect the rights of the parties (see Barrett Foods Corp. v New York City Bd. of Educ., 144 AD2d 410, 411). Since the matter does not warrant invoking the exception to the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714), we dismiss the appeal as academic. 

 

 

I could have sworn I had another Sepulcher case floating around here.

Dixon v City of New York, 2010 NY Slip Op 06775 (App. Div., 2nd 2010)

The plaintiffs seek to recover damages for, among other things, violation of the right of sepulcher and negligent infliction of emotional distress based on, inter alia, certain actions taken by personnel of the defendant Office of Chief Medical Examiner of the City of New York in connection with the autopsy of their deceased son. The plaintiffs contend, among other things, that their son's body was returned to them after the autopsy without the brain and certain other organs and/or body parts, a circumstance which the plaintiffs did not discover until their receipt of the autopsy report months after the autopsy and burial of the decedent. 

Contrary to the defendants' contention, the claim with respect to so much of the complaint as alleged a violation of the right of sepulcher and related claim for negligent infliction of emotional distress in this case did not arise, and the 90-day period within which to serve a notice of claim in this action pursuant to General Municipal Law § 50-e(1)(a) did not commence running, on the date of the autopsy. Rather, they accrued at the time the plaintiffs became aware of the defendants' actions and suffered mental anguish as a result (see Melfi v Mount Sinai Hosp., 64 AD3d 26, 32-40; Schultes v Kane, 50 AD3d 1277, 1278; Long v Sowande, 27 AD3d 247, 249; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356, 358-359; Dana v Oak Park Marina, 230 AD2d 204, 209-210). Accordingly, under the circumstances of this case, the plaintiffs' notice of claim with respect to those portions of the complaint was timely served. We note that our decision in Cally v New York Hosp. [*2]Med. Ctr. of Queens (14 AD3d 640) is not to the contrary, since the claim in that case was untimely under any of the accrual dates proffered by the parties, and we rejected therein the contention that the conduct at issue in that case constituted a continuing wrong.

The bold is mine.

 

CPLR R. 5015

Singh v North Shore Univ. Hosp., 2010 NY Slip Op 06626 (App. Div., 2nd 2010)

Apparently, when the exhibits available for the jury's review were collected, it was discovered that the plaintiff's attorney's "typewritten summation notes," which were not in evidence, had been mixed in with the plaintiff's decedent's medical records, which were in evidence. Soon thereafter, the defendants moved to vacate the stipulation of settlement, and for a new trial. The Supreme Court, which determined that the plaintiff's attorney "intentionally included" the notes "with" the medical records, granted the motion, vacated the stipulation of settlement, and ordered a new trial. Furthermore, the Supreme Court, sua sponte, directed the plaintiff's attorney to pay the defendants' "actual trial expenses" and a sanction in the sum of $10,000, and referred the matter to the Grievance Committee for the Eleventh Judicial District.

Stipulations of settlement, favored by the courts and not lightly set aside (see Hallock v State of New York, 64 NY2d 224, 230), are contracts subject to principles of contract interpretation (see McCoy v Feinman, 99 NY2d 295, 302). Only where there is cause sufficient to invalidate a contract, such as mistake or fraud, will a party be relieved from the consequences of a stipulation of settlement (see McCoy v Feinman, 99 NY2d at 302; Hallock v State of New York, 64 NY2d at 230).

Here, the defendants failed to establish a basis for the vacatur of the stipulation of settlement. The record does not establish that the defendants entered into the stipulation because they were aware that the plaintiff's attorney's typewritten summation notes had been made available to the jury. Accordingly, the Supreme Court improperly granted the defendants' motion to vacate the stipulation of settlement (cf. Masella v Leemilt's Flatbush Ave., 112 AD2d 1027, 1028) and for a new trial, and improperly, sua sponte, directed the plaintiff's attorney to pay the defendants' trial costs.

Interesting facts.

The bold is mine.

 

CPLR § 5511

Bana Elec. Corp. v Bethpage Union Free School Dist., 2010 NY Slip Op 06612 (App. Div., 2nd 2010)

ORDERED that the appeal by the defendant School Construction Consultants, Inc., is dismissed, without costs or disbursements, as abandoned (see 22 NYCRR 670.8[e]), and on the additional ground that the defendant School Construction Consultants, Inc., is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

"Whether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162). A contract is ambiguous when " the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings'" (Geothermal Energy Corp. v Caithness Corp., 34 AD3d 420, 423, quoting Feldman v National Westminster Bank, 303 AD2d 271, 271 [internal quotation marks omitted]). In deciding whether the writing is ambiguous, the court " should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed'" (Kass v Kass, 91 NY2d 554, 566, quoting Atwater & Co. v Panama R.R. Co., 246 NY 519, 524). [*2]If the court concludes that the language in the contract is ambiguous, "the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact" (State of New York v Home Indem. Co., 66 NY2d 669, 671; see Nappy v Nappy, 40 AD3d 825, 826; Geothermal Energy Corp. v Caithness Corp., 34 AD3d at 424; Weiss v Weinreb & Weinreb, 17 AD3d 353).

Here, an ambiguity exists as to whether the subject contract required the plaintiff to perform the work in question. Thus, the Supreme Court correctly determined that there are triable issues of fact which precluded an award of summary judgment to either party (see Geothermal Energy Corp. v Caithness Corp., 34 AD3d at 424; Pellot v Pellot, 305 AD2d 478, 481; Nappy v Nappy, 40 AD3d at 826; Siegel v Golub, 286 AD2d 489, 490).

The bold is mine.

But give me a footnote or something cool.

The Editors of the Pace Law Review invite proposals from scholars and practitioners for our third annual issue on New York law that is slated for publication in Spring 2011. In the past, this book has examined a wide range of topics in New York law, including education, immigration, land use, and criminal procedure. The Review is most interested in timely pieces that comment on recently decided cases, areas of New York law that are quickly evolving, and issues that broadly impact the people of the State.

Please submit proposals of no more than 500 words to plr@law.pace.edu by October 15, 2010.  We welcome proposals for articles, essays, and book reviews.  All proposals should include the author’s name, title, institutional affiliation, contact information, and should concern issues related to the subject-matter described above.  Book review proposals should also include: (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer’s expertise or any relationship with the author).  Authors are also welcome, but not required, to submit a CV.  We expect to make publication offers by October 31, 2010. 

Completed manuscripts will be due December 1, 2010.

Best regards,

James Healy and Nicholas Tapert

Executive Articles Editors

Pace Law Review

You won't get paid.   You probably won't get any recognition, but you can do whatever you want.  Even if its stupid or moderately offensive.

Too much caffeine.  Otherwise I'd be sleeping.  After a few tylenol PM, I managed to get to sleep.

I was talking to someone the other day about how important writing is.  But we aren't really told how important until it is almost to late to learn.  Had I known, I would have probably taken more classes that foster this skill.  Maybe journalism or some such. 

I never really enjoyed writing.  It's a painful endeavor.  And for the most part, especially in high school, I avoided.  In one class we had to write a term paper.  The grade was split into parts.  One was an outline, the other was some index card thing, and the third was actually writing.  I managed to get enouch credit to pass with my outline and index cards, so I never wrote the paper.  Ok.  Maybe it isn't the school.  It's just me.  I was a weird kid.

Roy Jacobsen¹, by way of Ray Ward² (where I found it), argues that if you can write, you will always have a job.  I sometimes wonder whether good writing, or even exceptional writing, is enough.  But then again, an exceptional writer is probably pretty damn smart, so exceptional (or even good) writers have that extra something.  So long as they don't go kicking puppies in front of the clients, they will probably always have a job.

But writing only matters when it matters.  In a volume (law) practice, does it really matter?

And who gets hired?  The person or the paper?

Moving on.  Have to keep the momentum going;³ keep on moving.   Of course it's hard to keep the momentum, when you are getting in your own way.⁴  Try to be your own alpha dog and megalomaniac.  Just keep calm.⁵  And persevere.⁶ 

Sometimes, all that isn't enough.  At the very least make eye contact and smile.

———————-

1. Writing, Clear and Simple

2.  the (new) legal writer

3.  seth godin's BLOG

4.  Dumb Little Man

5.  See 4

6. Mr. Self Development.com

 

If you work in any office, you're bound to get this question on Friday.  Same if you go to court.  My answer is always the same:  Not a damn thing.

I do this.  I sit at the computer and read, looking for things to write.  I take a walk with the wife and kids.  Sometimes I walk the dog too.  But other than that, I don't go anywhere or do anything.  I probably should.

Right now I'm watching a tv show on Ranger School.  Thirty people quit their first day.  Thirty out of Three-Hundred.  Another Fourty quit after the second day.

It makes me wonder if we should have a better process for thinning out the herd of law school applicants.  Not after law school like the Bar.  During the first year.  Maybe only the first semester. Make it harder.  Make it more stressful.  Those that don't make it will save themselves a hundred grand of debt and a lifetime of misery.  Substantially less people will make it to the second year than do in most law schools.  This will cut down on the amount of lawyers running around the country and increase the overall quality of the lawyers entering the world.

 

 

I didn't think there would be this much dead space on the right side.  Weird.  Very Weird.  Normal posts will resume tomorrow.  Until then, keep your head on a swivel.