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• Case #1
  New York Supreme Court, Appellate Division, Second Department
• Case #2
  New York Supreme Court, Appellate Division, Second Department
• CASE #3
  UNITED STATES v. JUAN DEJESUS-ABAD SECOND CIRCUIT

Case #1
CONFLICT OF LAWS

New York Supreme Court, Appellate Division, Second Department

Kranzler v. Austin
732 N.Y.S.2d 328 
  

New Jersey residents brought suit against New York driver, seeking damages for injuries sustained in automobile accident in New York. The Civil Court, Kings County, M. Archer, J., granted summary judgment for defendant, and plaintiffs appealed. The Supreme Court, Appellate Term, held that New York law, which set forth "serious injury" threshold which had to be met before recovery of noneconomic damages, applied. Affirmed. 
 
MEMORANDUM. Order unanimously affirmed without costs.
 
 
Plaintiffs are New Jersey residents who were involved in an automobile accident in New York, on the Verrazano Bridge, with defendant, a New York resident. Defendant subsequently moved for summary judgment on the ground that plaintiffs failed to sustain serious injuries pursuant to Insurance Law ' 5102(d). Plaintiffs contend that the "no threshold" provision of the New Jersey no-fault law should control since their car, which was owned and operated by Ronald Kranzler and in which Scott Kranzler was a passenger, was registered, garaged and insured in New Jersey under an insurance policy in which the no threshold option was purchased. We disagree. New York law sets forth a "serious injury" threshold which must be met before the recovery of noneconomic damages (Insurance Law '' 5102, 5104). New Jersey, however, allows the purchase of a no threshold option, for an increased premium, whereby the insured has no limitations on lawsuits and can sue for the noneconomic loss of pain and suffering for any injury, no matter how minor (N.J.S.A.39:6A-8). 
 
Since both these statutes involve post- event remedial laws relating to the recovery of noneconomic damages, they are defined as loss allocation cases for the purposes of choice of law (see, e.g., Schultz v. Boy Scouts of Am., 65 N.Y.2d 189, 198, 491 N.Y.S.2d 90, 480 N.E.2d 679; Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454; Tooker v. Lopez, 24 N.Y.2d 569, 576, 301 N.Y.S.2d 519, 249 N.E.2d 394; Miller v. Miller, 22 N.Y.2d 12, 18-19, 290 N.Y.S.2d 734, 237 N.E.2d 877; Babcock v. Jackson, 12 N.Y.2d 473, 483, 240 N.Y.S.2d 743, 191 N.E.2d 279; see also, Miller v. Bombardier, Inc., 872 F.Supp. 114, 118). In Neumeier, the Court of Appeals adopted three rules in determining the choice of law in loss allocation situations. Even though these rules were drafted for driver/passenger guest statutes, they are also applied to other loss allocation conflicts (see, e.g., Cooney v. Osgood Mach., 81 N.Y.2d 66, 73, 595 N.Y.S.2d 919, 612 N.E.2d 277; Schultz v. Boy Scouts of Am., supra, at 199-202, 491 N.Y.S.2d 90, 480 N.E.2d 679; see also, Padula v. Lilarn Props. Corp ., 84 N.Y.2d 519, 620 N.Y.S.2d 310, 644 N.E.2d 1001).The first Neumeier rule applies the law of the common domicile when all litigants live in the same state. This rule is inapplicable herein since defendant does not share the same state of domicile as plaintiffs. The second Neumeier rule applies the law of the place of injury when the litigants are domiciled in different states, each state's law favors its respective domiciliary, and the action is pending in the jurisdiction of one of the litigants. This rule applies to the facts herein as plaintiffs are New Jersey domiciliaries and New Jersey's no threshold provision favors them, while defendant is a New York domiciliary and New York's serious injury threshold favors him. Accordingly, we find that New York law controls. It is not only the place of injury, but is also the state in which all parties voluntarily associated themselves (Cooney v Osgood Mach., supra; Miller v. Bombardier, Inc., supra ).
 
Plaintiffs contend, however, that the third Neumeier rule applies herein. This rule is applicable to other situations where the litigants are domiciled in different states and provides that, normally, the law of the place of injury will control unless it is shown "that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (Neumeier v. Kuehner, supra, at 128, 335 N.Y.S.2d 64, 286 N.E.2d 454). Plaintiffs argue that if New Jersey's no threshold provision is not applied, New Jersey's citizens who are involved in accidents in New York would be denied the protection which New Jersey's statute was designed to provide and the multi-state system would be fatally eroded. However, plaintiffs fail to consider that the rationale behind New York's serious injury threshold requirement (to reduce the number of litigated automobile personal injury cases and to reduce no-fault insurance premiums) would be eroded if New Jersey law were applied and it would provide great uncertainty for New York domiciliaries who are involved in automobile accidents with New Jersey domiciliaries in New York State. As previously noted, we apply the second Neumeier rule to the facts herein. 
 
However, New York law would also control were the third Neumeier rule applicable herein since, arguably, each state's interest in enforcing its law is equal and the law of the place of injury controls in such a situation (Cooney v. Osgood Mach., supra, at 74, 595 N.Y.S.2d 919, 612 N.E.2d 277; see also, Schultz v. Boy Scouts of Am., supra, at 200-202, 491 N.Y.S.2d 90, 480 N.E.2d 679).Upon the application of New York law to the facts herein, the record on appeal establishes that defendant made a prima facie showing that plaintiffs did not sustain serious injuries pursuant to Insurance Law ' 5102(d). Plaintiffs failed to raise a triable issue of fact since they did not produce evidentiary proof, in admissible form, that they sustained serious injuries (Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176). Accordingly, we find that the court below properly granted defendant's motion for summary judgment dismissing the complaint. 

END OF DOCUMENT

Case #2

NEW YORK SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT

Johnson v. Spence
730 N.Y.S.2d 334, 2001

BREACH OF ORAL CONTRACT - CONVERSION - CONCEALMENT OF WINNING LOTTERY TICKET - AWARD FOR HALF OF LUMP SUM AMOUNT OF LOTTERY TICKET - PUNITIVE DAMAGES AND ATTORNEYS' FEES.

Verdict: $1,623,190, plus interest from 8/18/99, plus $100,000 for punitive damages and $100,000 for attorneys' fees on the conversion cause of action. 
 
Facts: Plaintiff claimed that on 7/23/99, she purchased a lottery ticket at the Tilden Mini-Market on Bedford Ave. with Deft., her then live-in boyfriend (who, unknown to Plaintif, was married at the time). Plaintif further claimed that she and Deft. had agreed orally to buy and share the proceeds of any winning ticket. The ticket proved to be the winning ticket that was drawn on 7/24/99. Plaintif claimed that Deft. concealed this fact from her, and on 8/18/99 he took a lump sum payment on the $7,000,000 ticket, resulting in a payment of $3,246,379, without informing her. Their relationship deteriorated, and they were no longer living together at the time of trial. 

 
In an action, inter alia, to recover damages for breach of an oral agreement, (1) the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), dated March 8, 2000, as granted that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss her causes of action to recover damages based upon breach of an oral agreement, and from so much of an order of the same court, dated September 28, 2000, as denied her cross motion for leave to depose the defendant prior to service of his answer, and (2) the defendant cross-appeals from a decision of the same court, dated July 11, 2000, and, as limited by his brief, from so much of an order of the same court, dated August 4, 2000, as granted the plaintiff's motion for leave to renew and reargue, and upon renewal and reargument, granted the plaintiff's cross motion for leave to amend the complaint to add a cause of action to recover damages for conversion. The appeal from the order dated March 8, 2000, brings up for review so much of the order dated August 4, 2000, as, upon renewal and reargument, adhered to the original determination granting that branch of the defendant's motion which was to dismiss the causes of action to recover damages based upon breach of an oral agreement (see, CPLR 5517 [b]).


Ordered that the appeal from the order dated March 8, 2000, is dismissed, as that order was superseded by the order dated August 4, 2000, made upon renewal and reargument; and it is further,

Ordered that the cross appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order dated August 4, 2000, is modified, on the law, by deleting the provision thereof, upon renewal and reargument, adhering to so much of the order dated March 8, 2000, as granted that branch of the defendant's motion which was to dismiss the causes of action to recover damages based upon breach of an oral agreement, and substituting therefor a provision denying that branch of the defendant's motion; as so modified, the order dated August 4, 2000, is affirmed insofar as appealed and cross-appealed from, and the order dated March 8, 2000, is modified accordingly; and it is further,

Ordered that the appeal from the order dated September 28, 2000, is dismissed as academic; and it is further,

Ordered that the plaintiff is awarded one bill of costs. The plaintiff and the defendant, who lived together from 1998 to 1999, allegedly had agreed to purchase lottery tickets jointly and to share the proceeds of any winning ticket equally. In July 1999 a winning lottery ticket was purchased, and the defendant claimed the $7,000,000 prize for himself. Thereafter, the plaintiff commenced this action, alleging, inter alia, causes of action to recover damages based upon breach of the oral agreement, and claimed that she was entitled to one-half of the proceeds of the lottery prize. The defendant moved to dismiss the causes of action to recover damages based upon breach of the oral agreement pursuant to, inter alia, CPLR 3211 (a) (7), arguing that no such oral agreement existed. The plaintiff cross-moved for leave to amend her complaint to add a cause of action to recover damages for conversion, claiming that she had purchased the winning ticket with her funds and that the defendant had taken the ticket and redeemed it unbeknownst to her. 


The Supreme Court granted that branch of the motion which was pursuant to CPLR 3211 (a) (7) to dismiss the breach of oral agreement claims and denied the cross motion. The plaintiff then moved for leave to renew and reargue, and submitted an affidavit from the store clerk who sold the winning ticket stating that the plaintiff purchased it. Upon renewal and reargument, the Supreme Court granted the plaintiff's cross motion for leave to amend the complaint to add a cause of action for conversion, but adhered to its original determination dismissing the breach of oral agreement claims. The Supreme Court erred in dismissing the plaintiff's causes of action to recover damages based on breach of the oral agreement. The plaintiff's allegations, which must be taken as true (see, Cron v Hargro Fabrics, 91 NY2d 362, 366; Auguston v Spry, 282 AD2d 489), state a valid cause of action for breach of an oral agreement to share the proceeds of the winning lottery ticket (see, Edwin v Arackal, 241 AD2d 335; Campbell v Campbell, 213 AD2d 1027; Pando v Fernandez, 118 AD2d 474; cf., Maffea v Ippolito, 247 AD2d 366). Since the branch of the defendant's motion to dismiss the complaint was not converted to a motion for summary judgment, the plaintiff was not required to make an evidentiary showing in support of her complaint (see, Rovello v Orofino Realty Co., 40 NY2d 633, 635-636; Smuckler v Mercy Coll., 244 AD2d 329). 


Therefore, dismissal of the causes of action based upon breach of an oral agreement on the ground that the plaintiff failed to prove the existence of the agreement was improper. Furthermore, where a motion to dismiss a complaint pursuant to CPLR 3211 has not been converted to a motion for summary judgment, affidavits submitted by the plaintiff may be used to remedy an inartfully pleaded complaint, but affidavits from the defendant seldom may be used to defeat a claim (see, Rovello v Orofino Realty Co., supra).Contrary to the defendant's contention, the Supreme Court, upon renewal and reargument, properly granted the plaintiff's cross motion for leave to amend the complaint (see, CPLR 2221 [d], [e]). Moreover, the plaintiff could have amended her complaint as of right, since the defendant's motion to dismiss the complaint, which extended his time to answer the complaint, also extended the plaintiff's time to amend the complaint (see, CPLR 3025 [a]; STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 410).The defendant's contention that the plaintiff's claims are barred by the Statute of Frauds is without merit (see, Edwin v Arackal, supra; Campbell v Campbell, supra).The plaintiff's cross motion for leave to depose the defendant prior to service of his answer has been rendered academic, as the defendant has served an answer (see, CPLR 3106). The parties' remaining contentions are without merit. O'Brien, J. P., Altman, Luciano and Adams, JJ., concur.
END OF DOCUMENT.

CASE #3
CRIMINAL LAW

United States v. Juan DeJesus-Abad SECOND CIRCUIT

United States, appellee v. Juan DeJesus-Abad, defendant-appellant Decided Aug. 23, 2001 Before Walker, C.J.; Jacobs, C.J. and Larimer,C.D.J. Docket No. 00-1596DEFENDANT JUAN DeJesus-Abad appeals from a July 18, 2000 judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, District Judge) convicting him, after a guilty plea, of conspiring to distribute heroin in violation of 21 U.S.C. '846 and sentencing him to, inter alia, 70 months' incarceration.AFFIRMED.Mark Diamond, for appellant.Paul B. Radvany, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, William C. Silverman and Christine H. Chung, Assistant United States Attorneys, on the brief), for appellee.

PER CURIAM - 
Defendant Juan DeJesus-Abad appeals from a July 18, 2000 judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, District Judge) convicting him, after a guilty plea, of conspiring to distribute heroin in violation of 21 U.S.C. '846 and sentencing him to, inter alia, 70 months' incarceration. DeJesus-Abad now attacks the validity of his guilty plea. Finding DeJesus-Abad's claims to be without merit, we affirm.

BACKGROUND. On Nov. 18, 1999, DeJesus-Abad pled guilty to one count of conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. '846, based on alleged sales of heroin from a street corner on the New York City's Upper West Side. DeJesus-Abad and the government stipulated to a base offense level of 32 pursuant to U.S.S.G. '2131.1(c)(4), a three-level reduction for acceptance of responsibility, under U.S.S.G. '3E1.1, and a further two-level reduction under the socalled "safety valve" provision, 18 U.S.C. '3553(f) and U.S.S.G. '5C1.2. They also stipulated that the applicable Guidelines sentencing range was 70 to 87 months, given DeJesus-Abad's criminal history category of 1. The agreement stated that the stipulation was not binding on the court.The district court held a plea allocution at which it determined that DeJesus-Abad's plea was knowing and voluntary. During the allocution, the district court informed DeJesus-Abad that conviction for a violation of '846 carried a minimum sentence of 10 years' imprisonment and a possible maximum sentence of life imprison-ment. Around April 4, 2000, DeJesus-Abad moved to withdraw his plea, which motion the district court denied on April 20, 2000. After two hearings, on June 17, 2000, the district court adopted the same Guidelines calculation as that stipulated to by the parties and sentenced DeJesus-Abad in principal part to 70 months' incarceration. In passing sentence, the district court expressly found that DeJesus-Abad qualified for safety valve relief under 18 U.S.C. '3553(f). Judgment was entered on July 18, 2000, and DeJesus-Abad filed a notice of appeal on Aug. 15, 2000.By summary order dated June 1, 2001, we dismissed DeJesus-Abad's appeal as untimely filed. See United States v. DeJesus-Abad, No. 00-1596, 2001 WL 604468 (2d Cir. June 1, 2001) (unpublished disposition). DeJesus-Abad's notice of appeal was filed more than ten days after the district court's judgment and thus outside the time for filing established by Fed. R. App. P. 4(b)(1)(A). We accordingly dismissed for want of jurisdiction.On June 12, 2001, DeJesus-Abad moved for reconsideration of our decision, noting that the notice-of-appeal form that he had filed, pro se, indicated that such notice must be filed within 30 days, rather than 10 days. In light of that fact, on June 22, 2001, we granted the motion, vacated our earlier order, and dismissed the appeal without prejudice as to renewal, returning jurisdiction to the district court with instructions to construe DeJesus-Abad's untimely notice of appeal as a motion for extension of time to file and to decide whether granting that motion would be justified by excusable neglect. See United States v. Batista, 22 F.3d 492 (2d Cir. 1994) (per curiam). On July 24, 2001, the district court granted DeJesus-Abad a 15-day extension to file his notice, effective from the date of its order. DeJesus-Abad filed a new notice on July 26, 2001, returning jurisdiction to this court. Accordingly, we now reach the merits of DeJesus-Abad's appeal.

DISCUSSION: DeJesus-Abad first argues that his plea was invalid because the district court misinformed him about the applicable maximum and mandatory minimum sentences, telling him only about the statutory maximum and minimum without application of the "safety valve." This claim lacks merit.DeJesus-Abad stipulated to a sentence range of 70 to 87 months, on the assumption that he would qualify for "safety valve" relief, under 18 U.S.C. '3553(f) and U.S.S.G. '5CI.2, from the applicable statutory minimum sentence of ten years.[1]H At the plea allocution, the district court informed DeJesus-Abad that he could be subject to a maximum sentence of life imprisonment and a minimum sentence of ten years' imprisonment, under 21 U.S.C. ''841(b)(1)(A) and 846. Because DeJesus-Abad eventually received the benefit of the '3553(f) safety valve, he now claims that the court instead should have informed him of the maximum and minimum sentences he could receive given application of the safety valve: in this case, 70 months to 87 months.Although a district court must inform the defendant at the plea allocution of the maximum and minimum possible penalties for the charged offense, see Fed. R. Crim. P. 11(c)(1), the district court was not obligated to inform DeJesus-Abad of the minimum sentence he could receive assuming application of the safety valve. As an initial matter, we have held that Rule 11(c)(1) does not obligate a district court to calculate and inform the defendant of the applicable Guidelines sentencing range. See United States v. Fernandez, 877 F.2d 1138, 1143 (2d Cir. 1989). Insofar as DeJesus-Abad argues that the district court was required to inform him of the maximum and minimum sentences applicable under the Guidelines, then, Fernandez bars his claim.Even assuming, however, that the safety valve supersedes the otherwise applicable statutory minimum as the "mandatory minimum penalty provided by law," Fed. R. Crim. P. 11(c)(1), we do not believe that a district court is required to inform the defendant of it, because, at the time of the plea allocution, the safety valve is not yet applicable. For a variety of reasons, a defendant's qualification for '3553(f) relief is ascertainable only at sentencing, not at the time the plea is accepted by the district court. First, '3553(f) states specifically that the defendant's compliance with the five factors is to be determined "at sentencing." Second, the fifth factor, the defendant's provision of all information in his possession and relevant to the case, allows the defendant to provide that information "not later than the time of the sentencing hearing." 18 U.S.C. '3553(f)(5); see also United States v. Schreiber, 191 F.3d 103, 106 (2d Cir. 1999) (holding that a defendant's prior lies are not relevant if the defendant provides the requisite truthful information by the statute's "one deadline for compliance," the sentencing hearing). Third, as a practical matter, at the time of the plea allocution, prior to preparation of a pre-sentence report, the district court lacks the information necessary to determine whether '3553(f)'s five factors apply to the defendant. Finally, the sentencing hearing provides an opportunity for the parties to dispute whether '3553(f) is applicable. In sum, it would be premature for the district court to guess at the plea allocution stage whether the defendant will qualify for the safety valve. We do not read Rule 11(c)(1) to require such guesswork. Accordingly, the district court's failure to apprise DeJesus-Abad of the minimum sentence possible giver) application of the safety valve was not error.DeJesus-Abad also argues that the district court failed to elicit the factual basis for his plea, as required by Fed. R. Crim. P. 11(f). "Rule 11(f) requires the court to assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty." United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997). "We review for abuse of discretion the district court's finding that the record furnishes a factual basis sufficient to support the plea." United States v. Smith, 160 F.3d 117, 122 (2d Cir. 1998).DeJesus-Abad contends that the record does not indicate either that he conspired with anyone else in selling heroin or the quantity of heroin he sold. We read the record differently and find no abuse of discretion in the district court's acceptance of DeJesus-Abad's plea. First, DeJesus-Abad admitted during his plea allocution that he approached an individual named "Cesar Honorat" "to get a few bucks" and implied that he accomplished that goal by selling "bags of heroin." This admission was a sufficient basis for the district court to conclude that DeJesus-Abad in fact had conspired to distribute heroin.Second, although DeJesus-Abad was somewhat equivocal about the quantity of heroin he had sold, his statements, and those of defense counsel, were adequate to support the conclusion that he sold between one and three kilograms of heroin. DeJesus-Abad himself adopted the government's statement that he had sold between one and three kilos. His counsel also stated that "[s]ince he had advised me he sold in small bundles, it's hard for him to figure out when it reached one kilo, but it was approximately one kilo or more." Finally, the district court later confirmed this admission in reviewing DeJesus-Abad's motion to withdraw his plea. The court explained at some length the quantity that DeJesus-Abad was alleged to have sold, concluding that[t]he point is that you were charged with over a period of time being involved in a conspiracy to sell at least a kilo and more. When I asked you about it [at the plea allocution] you said yes, you did it, and when I asked you again today you said yes, and now you are telling me that wasn't true.THE DEFENDANT: It's true. It's true. I am not denying it. I am not denying it.In short, the district court had ample reason to find that DeJesus-Abad had sold more than a kilogram of heroin. Therefore, we hold that the district court did not violate Rule 11(f) in accepting the plea.

CONCLUSION: For the foregoing reasons, the judgment of the district court is affirmed.(f) Limitation on applicability of statutory minimums in certain cases.-Notwithstanding any other provision of law, in the case of an offense under . . . 21 U.S.C. ['']841, 844, 846 [or] 21 U.S.C. ['']960, 963[ 1, the court shall impose a sentence pursuant to [the Sentencing Guidelines] without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that(1) the defendant does not have more than I criminal history point, as determined under the sentencing guidelines;(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;(3) the offense did not result in death or serious bodily injury to any person;(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in [21 U.S.C. '848]; and(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

FootNotes:[1] Section 3553(f) reads, in full, as follows:Section 5C1.2 of the Sentencing Guidelines reiterates verbatim the criteria listed in '3553(f). See U.S.S.G. '5C 1.2.