Cross-Examination and Tax Returns

           The decision Young & Rondinello v. Lacy highlights the law regarding cross-examination of a plaintiff's tax return information in a personal injury trial (CA 13-01918, NYLJ 1202672225674, at 1, App. Div., 4th, decided September 26, 2014).

            In Young, the plaintiffs sued the defendant for injuries sustained in an automobile collision.  At trial, the defendant sought to cross-examine one of the plaintiffs regarding her tax return information (hoping to elicit an admission that she committed tax fraud in the past, which could cast doubt on her overall credibility).  The judge disallowed such questioning by defendant, holding that it was a collateral issue (which is an issue taken upon a matter aside from the merits of the case), and ultimately a jury awarded damages of $329,517 to the plaintiffs.  The defendant appealed, arguing for a new trial as, among other things, she should have been allowed to cross-examine the plaintiff regarding her tax return information.

            The Appellate Division, Fourth Department agreed with the defendant, and reversed the trial court's decision, ordering a new trial and allowing the defendant to question the plaintiff regarding the tax return information.  The Appellate Division held that, although questions regarding the plaintiff's tax return information is a collateral issue, the defendant nevertheless had the right to ask the plaintiff about it (though could not attempt to refute the plaintiff's answers by way of extrinsic evidence), stating as follows: "Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant's attorney would have been bound by plaintiff's answers concerning her federal tax returns without 'refuting [those] answers by calling other witnesses or by producing extrinsic evidence'...we nevertheless conclude that defendant's attorney should have been allowed to ask the questions (see McNeill v. LaSalle Partners, 52 AD3d 407, 410)."

Salvatore R. Marino, Esq.

Default Judgment and 50 USCS Appx § 521

            In Ellis v. Fortune (31932-2012, NYLJ 1202667402623, at 1), the Suffolk County Supreme Court denied a plaintiff's motion for a default judgment against a defendant who allegedly failed to appear in the action.  According to the Court, the reason for the denial was due to the plaintiff's non-compliance with 50 USCS Appx §521, which protects military service members from default judgments, as it requires that an affidavit must be supplied to the court when seeking a default judgment that (a) states whether or not the defendant is in military service and showing necessary facts to support the affidavit, or (b) if the plaintiff is unable to determine whether or not the defendant is in military service, states that the plaintiff is unable to determine whether or not the defendant is in military service.  In this case, the Court held that both conditions were not satisfied, thereby resulting in the denial of the motion.

            Particularly, the Court stated the following: "Here, the plaintiffs' affidavits of service do not contain the statutorily required statement as to the military status of the defendants.  For example, defendant Fabrice Fortune was allegedly served pursuant to CPLR 308(2) by delivery to a person of suitable age and discretion, 'Jane Doe.'  The military service portion of the plaintiffs' affidavit of service upon Fabrice Fortune merely states that the process server 'asked the person spoken to whether the recipient [Jane Doe] was in active military service…Recipient [Jane Doe] wore ordinary civilian clothes and no military uniform…Upon information and belief I aver that the recipient [Jane Doe] is not in the military service….' (emphasis added).  Similarly, although defendant Marie C. Fortune was allegedly served pursuant to CPLR 308(4), the so-called 'nail and mail' method of service, by affixing the summons and complaint to her door, the military service portion of the affidavit of service states, 'Upon information and belief I aver that the recipient [the door] is not in the military service….' (emphasis added). Obviously, neither of these affidavits concerning the military status of the defendants is credible. Therefore, pursuant to 50 USCS Appx §521(b), a judgment of default may not be entered against either defendant."

Salvatore R. Marino, Esq.

U.S. Supreme Court Edits Decisions Without Notice

            According to a recent article in the New York Times by Adam Liptak ("Final Word on U.S. Law Isn't: Supreme Court Keeps Editing," 5/24/14), the United State Supreme Court has been regularly editing its decisions - without making public notice of the revisions.  According to Richard J. Lazarus in the article, law professor at Harvard and the author of a new study regarding the practice, the edits include "truly substantive changes in factual statements and legal reasoning."

            This practice is seemingly troublesome - particularly for attorneys across the country - as the decisions are relied upon for guidance, and the finality of them is now discovered to be uncertain with respect to significant legal holdings.  This was particularly noted by Jeffrey L. Fisher in the article, a law professor at Stanford, who stated, "[i]n Supreme Court opinions, every word matters...[w]hen they’re changing the wording of opinions, they’re basically rewriting the law."

            One reason the article notes for the revisions is due to the time constraints the Justices have when writing and publishing their decisions (which sometimes lead to inaccuracies and misstatements of law).  Also, according to Mr. Liptak, the final versions of decisions do not always fully replace the original ones, and the only way the public can identify most changes is by a rigorous comparison of early versions of decisions to ones published years later.

Salvatore R. Marino, Esq. 

Negligent Security Case is Dismissed

            In Vekhter v. Vishnyakov and Astoria Caterers, Inc. (NYLJ 1202653274435, at 1, Sup., Kings, decided April 21, 2014), the plaintiff brought a negligence action against a defendant restaurant, alleging that the restaurant was liable for injuries he suffered as a result of being attacked by another patron of the establishment when he was there.  Particularly, the plaintiff alleged the following causes of action: negligence and battery; intentional infliction of emotional distress; assault; negligent infliction of emotional distress; premises liability; negligent hiring, supervision, and retention; failure to provide security as required by New York City Administrative Code §20-359; and punitive damages.

            After the defendant made a motion for summary judgment (seeking to dismiss the plaintiff's action), the Kings County Supreme Court granted the defendant's motion, holding, among other things, that the plaintiff failed to raise a triable issue of fact with respect to issues of proximate cause and foreseeability.  The Court also stated the following: "While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforseen and unexpected assault...Nonetheless, plaintiff's vague and conclusory assertion that 'fights like [his] regularly happened' is insufficient to support a duty on [defendant's] part to provide security either generally or for [the event].  Plaintiff provides no evidence of a history of assaults or altercations either at [defendant's restaurant] or [similar events] held elsewhere."

Salvatore R. Marino, Esq.

HDFC Tenants' Rights

            A recent court decision highlights Housing Development Fund Corporation (also known as "HDFC") tenants' rights with respect to eviction proceedings, and the greater protections those tenants have.

            In 823 East 147th Street Housing Development Fund Corp. v. Hinnant (NYLJ 1202649981134, at 1, Civil Court, Bronx, decided March 28, 2014), the petitioner landlord, a non-profit Housing Development Fund Cooperative Corporation, commenced a holdover eviction proceeding at the expiration of the tenant's lease, but without service of a predicate termination notice.  Before serving an answer, the tenant moved pursuant to CPLR 3211(a) to dismiss the proceeding asserting that the petition failed to state a cause of action upon which relief could be granted (including that it failed to provide a reason for the eviction), and the petitioner opposed and argued that it was not required to allege a reason for the termination because the tenant did not take possession of the subject apartment until after the HDFC conversion.

            Ultimately, the Bronx Civil Court dismissed the petitioner's action, citing the lack of any reason for the eviction (other than the expiration of the tenancy), and that HDFC tenants are entitled to greater protections by way of the U.S. Constitution as HDFC facilities are "entwined" with the government, as displayed as follows: "[i]t is well established that where a governmental entity meaningfully participates in the operation or control of a building so as to be significantly 'entwined' with it, eviction proceedings must comply with constitutional Procedural Due Process guarantees...[w]ith respect to HDFCs, a government agency fixes their rentals, requires the availability of units to occupants within certain income guidelines, and restricts the use of any their profits...thereby triggering Due Process protections.  Among the most basic of these protections is notice to the tenant of the cause for the eviction, other than mere expiration of the tenancy...." 

Salvatore R. Marino, Esq.

Tort of "Negligent Words"

            In Ripp v. Lavore (BASC 434-13, NYLJ 1202646720701, at 1, District Court, Suffolk, decided February 28, 2014), the facts are as follows: plaintiff and defendant entered into a written contract to make repairs on plaintiff's boat - those repairs included removing and replacing two rotted stringers; at some point during the work's progress, defendant advised plaintiff that it was not necessary to replace the full stringers because the fore and aft sections were "rock solid"; upon completion of this revised work plan, however, by early July 2011, the boat began to leak on the port side; as a result of the foregoing, plaintiff filed a small claims complaint against the defendant alleging breach of a contract to repair plaintiff's boat.

            After the conclusion of a trial de novo for said matter, the Court ruled in favor of plaintiff's breach of contract claim - citing contract law (particularly, that the oral modification to the written contract was unenforceable), and the tort of "negligent words" as plaintiff relied on defendant's representations to his detriment.

            With respect to the tort law, the Court stated the following: "Liability in [negligent words] cases arises only where there is a duty, if one speaks at all, to give the correct information.  And that involves many considerations.  There must be knowledge or its equivalent that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that if false or erroneous he will because of it be injured in person or property.  Finally the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care" [quoting International Products Co. v. Erie R. Co., 244 N.Y. 331, 338 (1927)]."

Salvatore R. Marino, Esq.

Order to Show Cause Improper for Wrongful Death Settlement

            In Cutrone v. Tsahalis (21344/13, NYLJ 1202641851331, at 1, Sup., Kings, decided February 03, 2014), the New York Kings County Supreme Court rejected an application by a plaintiff's attorney for a wrongful death settlement as it was improperly submitted.

            The Court's reasons included the following: (1) an Order to Show (and any other special proceeding) is not the proper route to resolve a wrongful death matter pursuant to law - rather, submission of a wrongful death compromise application to the Surrogate's Court is; (2) the respondent was never served with the application (just his insurance company was served); and (3) a wrongful death claim was never pending in the Supreme Court.

            The Court also stated the following in its decision: "[t]he allocation of responsibility between Supreme Court and Surrogate's Court for the approval of settlements of wrongful death claims and the distribution of settlement proceeds is not a matter of legislative accident...[u]nlike CPLR 1207, concerning the settlement of a claim by an infant, judicially declared incompetent, or conservatee, which explicitly provides for a special proceeding for that purpose if no action is pending, the Court is aware of no similar provision for a special proceeding for judicial approval of the settlement of a wrongful death claim.  Whether Supreme Court has inherent power to entertain such a proceeding pursuant to the State Constitution's grant of almost unlimited general jurisdiction...and whether the Surrogate's limit on the authority of a personal represented in the manner illustrated by the Letters Testamentary granted here would preclude such a proceeding...are not questions the Court is prepared to address on this record."

Salvatore R. Marino, Esq.