New York Law Review

Tag: 1981

  • Continental Cas. Co. v. Equitable Life Assur. Soc’y of the U.S., 52 N.Y.2d 228 (1981): Pro Rata Liability for Overlapping Insurance Coverage

    Continental Cas. Co. v. Equitable Life Assur. Soc’y of the U.S., 52 N.Y.2d 228 (1981)

    When multiple insurance policies cover the same risk, and each policy contains “other insurance” clauses, the liability should be shared proportionally based on the coverage provided by each policy, preventing either insurer from escaping its contractual obligations.

    Summary

    Continental Casualty Company (Continental) and Equitable Life Assurance Society of the United States (Equitable) disputed which insurer was responsible for disability claims of Control Data Corporation employees who became disabled under Continental’s policy but experienced a recurrence after Equitable’s policy took effect. The New York Court of Appeals held that both insurers were liable and should contribute proportionally to the payment of claims. The court reasoned that each insurer had contracted to cover the risk, and neither should receive a windfall by escaping its obligations. The court established a method for apportioning liability based on the specific terms and benefit limits of each policy.

    Facts

    Continental issued a group disability policy to Control Data Corporation, effective from July 1, 1975, to June 30, 1976. Equitable replaced Continental with its own policy starting July 1, 1976. A dispute arose regarding disability claims of employees who became disabled under Continental’s policy but experienced a recurrence within six months of returning to work, after Equitable’s policy became effective. Continental’s policy had a “recurrent disability” clause, while Equitable’s policy had an “actively at work” requirement for eligibility.

    Procedural History

    Continental filed a declaratory judgment action. Special Term ruled in favor of Equitable, holding Continental solely responsible for the claims. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether Continental’s “recurrent disability” clause made it solely responsible for claims of employees who became disabled during its policy term but experienced a recurrence under Equitable’s policy.
    2. Whether Equitable’s policy, which lacked specific exclusions for pre-existing conditions, covered employees with recurring disabilities.
    3. How should liability be apportioned when two insurance policies cover the same risk, and each contains clauses attempting to limit or exclude coverage if other insurance is available?

    Holding

    1. No, because Equitable also contracted to insure against the same risk.
    2. Yes, because the original Equitable policy did not exclude disabilities based on pre-existing conditions.
    3. Liability should be shared proportionally, with each insurer contributing based on the extent of the coverage it contractually assumed, after accounting for any qualifying periods or benefit limitations in each policy.

    Court’s Reasoning

    The court reasoned that both insurers had independently contracted to cover the same risk. Imposing liability solely on Continental would result in a windfall for Equitable, and vice versa. Drawing an analogy to liability insurance cases, the court cited Federal Ins. Co. v. Atlantic Nat. Ins. Co., 25 N.Y.2d 71, 78, and asserted that when insurers assume the same risk, each must contribute to the payment of the claim.

    The court addressed the “benefit reduction” clauses in both policies, which purported to pay only the excess over what the other insurer paid. It determined that these clauses should cancel each other out, similar to how “excess” clauses are treated in overlapping liability insurance coverage, citing Lumbermen’s Mut. Cas. Co. v. Allstate Ins. Co., 51 N.Y.2d 651, 655.

    The court outlined a method for apportioning liability: “[T]he contribution of each should be calculated in proportion to the amount of liability it contractually assumed.” This involved first determining the amount payable under each contract, then ensuring the disabled employee receives the higher of the two benefits. The contribution of each insurer should then be determined by excluding benefits not afforded by the other and sharing the common liability proportionally. The Court stated, “In this way, neither insurer will escape liability and receive a ‘windfall’, and neither will be saddled with the sole responsibility for claims which the other insurer is also contractually obligated to pay.”

    The court recognized limitations in the Equitable policy, such as the initial 30-day (later five-month) qualifying period, during which Continental would remain solely responsible. It also acknowledged that benefit amounts might differ under each policy due to express limitations. The court’s goal was to ensure that each insurer paid its fair share based on its contractual obligations, preventing either from unfairly escaping liability.

  • Weiss v. Weiss, 52 N.Y.2d 170 (1981): Restricting a Custodial Parent’s Relocation to Protect Visitation Rights

    Weiss v. Weiss, 52 N.Y.2d 170 (1981)

    A custodial parent’s right to relocate is not absolute and may be restricted when the relocation would significantly impair the non-custodial parent’s visitation rights, especially when the move is not essential for the custodial parent’s or child’s well-being.

    Summary

    This case involves a divorced mother who sought to relocate with her 11-year-old son from New York to Las Vegas, Nevada, to improve her personal life. The father, concerned about the impact on his visitation rights, sought to enjoin the move. The New York Court of Appeals affirmed the Appellate Division’s decision to grant the injunction, holding that the mother’s desire for a “new life” did not outweigh the child’s and father’s interest in maintaining regular visitation, especially since the move was not prompted by a firm job offer or exceptional health or educational needs. The court emphasized the importance of both parents’ roles in a child’s life post-divorce and the need for a reasonable accommodation of their rights.

    Facts

    The parties divorced in 1975, with the mother granted custody of their son. The separation agreement, incorporated but not merged into the divorce decree, provided the father with generous visitation rights, including weekday afternoons, alternating weekends, and holiday visits. The father actively participated in the son’s life. The mother wished to relocate to Las Vegas to improve her social life and financial situation. The separation agreement contained a clause allowing each parent to reside wherever they chose. The son expressed a preference to remain in New York to be near his father.

    Procedural History

    The father sought an injunction in Supreme Court, Westchester County, to prevent the mother from moving the child to Nevada. The Supreme Court denied the father’s application. The Appellate Division reversed, granting the injunction. The mother appealed to the New York Court of Appeals.

    Issue(s)

    Whether a custodial parent should be enjoined from relocating with a child when the relocation would significantly impair the non-custodial parent’s visitation rights, despite a separation agreement clause allowing each parent to reside where they choose.

    Holding

    Yes, because the mother’s relocation to Las Vegas would significantly curtail the father’s visitation rights, which were actively exercised and important to the child’s well-being, and because the move was not prompted by necessity or a concrete opportunity, but rather a desire for a better personal life.

    Court’s Reasoning

    The court acknowledged the mother’s good faith but emphasized that the child’s welfare and the importance of the father-son relationship must be considered. The court interpreted the residency clause in the separation agreement as general “boilerplate” not intended to override the specific visitation provisions. It emphasized that visitation is a joint right of the child and the non-custodial parent. The court balanced the mother’s desire for self-improvement against the potential harm to the father-son relationship, noting that the move was not driven by necessity. The court found the Appellate Division did not abuse its discretion. The court stated, “Visitation is a joint right of the noncustodial parent and of the child.” It further noted, “Always remembering the formative aspects of childhood, the quest, if possible, is for a reasonable accommodation of the rights and problems of both [parents].” The court highlighted that the mother’s move was for an “opportunity” not a firm vocational offer, and was not fueled by exceptional health or educational needs.

  • In re Estate of Snide, 52 N.Y.2d 193 (1981): Mutual Will Mistake and Testamentary Intent

    In re Estate of Snide, 52 N.Y.2d 193 (1981)

    When mutual wills are mistakenly signed by the wrong party but are otherwise identical and executed with proper formality, the court may admit the mistakenly signed will to probate if the testator’s intent is clear and there is no evidence of fraud.

    Summary

    Harvey and Rose Snide intended to execute mutual wills, but each mistakenly signed the will prepared for the other. The wills were identical except for the names. Harvey’s will left everything to Rose. After Harvey’s death, Rose offered the will Harvey signed for probate. The Surrogate’s Court admitted the will and reformed it. The Appellate Division reversed, holding the will inadmissible. The New York Court of Appeals reversed, holding that the will could be admitted to probate. The court reasoned that because the mistake was genuine, the testamentary intent was clear, and there was no evidence of fraud, the will should be admitted.

    Facts

    Harvey and Rose Snide intended to execute mutual wills. The wills were prepared such that Harvey’s will left his estate to Rose, and Rose’s will left her estate to Harvey. At the execution ceremony, the wills were placed in envelopes, mistakenly labeled such that each received the other’s will. Neither Harvey, Rose, the attorney, nor the witnesses noticed the error, and Harvey signed the will intended for Rose, and Rose signed the will intended for Harvey. The wills were otherwise identical.

    Procedural History

    Rose Snide, as the proponent, offered the instrument Harvey signed for probate in Surrogate’s Court. The Surrogate decreed the will admissible and reformed it to reflect the correct names. The Appellate Division reversed, holding that the instrument could not be admitted to probate. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.

    Issue(s)

    Whether a will mistakenly signed by the wrong testator, but intended to be executed by that testator as part of a mutual will agreement and otherwise executed with proper formality, can be admitted to probate.

    Holding

    Yes, because the mistake was genuine, the testamentary intent was clear, the wills were mutual and identical in substance, and there was no evidence of fraud.

    Court’s Reasoning

    The court reasoned that the critical element for a valid will is testamentary intent. While that intent usually attaches to the document signed, the court declined to take such a formalistic view in this case. The court emphasized that the dispositive provisions of the two wills were identical except for the names and that the variance was fully explained by considering the documents together and the surrounding circumstances. The court distinguished the case from those where testamentary intent was truly lacking. The court stated: “Under such facts it would indeed be ironic — if not perverse — to state that because what has occurred is so obvious, and what was intended so clear, we must act to nullify rather than sustain this testamentary scheme.”

    The court addressed the concern that this ruling would open the door to widespread reformation of wills, clarifying that the holding was limited to the specific facts of the case: identical mutual wills executed simultaneously with statutory formality. The court emphasized that there was no danger of fraud, and refusing to read the wills together would expand formalism without any benefit. “Not only did the two instruments constitute reciprocal elements of a unified testamentary plan, they both were executed with statutory formality, including the same attesting witnesses, at a contemporaneous execution ceremony. There is absolutely no danger of fraud, and the refusal to read these wills together would serve merely to unnecessarily expand formalism, without any corresponding benefit. On these narrow facts we decline this unjust course.”

  • Weimer v. Bd. of Educ., 52 N.Y.2d 148 (1981): Assignability of Taxpayer Actions

    Weimer v. Bd. of Educ., 52 N.Y.2d 148 (1981)

    A taxpayer’s action, designed to prevent the misuse of public funds, cannot be assigned to a non-taxpayer because taxpayer status is a prerequisite to maintaining such an action.

    Summary

    This case addresses whether a taxpayer’s action can be assigned to someone who is not a taxpayer. The Burners, as taxpayers, initiated an action against the Board of Education, alleging illegal expenditure of funds. Weimer, not demonstrably a taxpayer, obtained an assignment of the Burners’ rights and continued the action. The New York Court of Appeals held that such an assignment is against public policy. The court reasoned that the right to bring a taxpayer’s action is intrinsically linked to taxpayer status and cannot be transferred to someone lacking that status. Therefore, Weimer lacked standing to pursue the action.

    Facts

    George Weimer was removed from his position with the school district. He then filed an Article 78 proceeding. While that proceeding was pending, David and Sandra Burner, alleging to be taxpayers, sued the board claiming it illegally spent funds on attorneys for certain employees in the earlier proceeding.
    The Board defended, arguing it acted legally and the Burners were not the real parties in interest.
    The Burners’ motions were denied, and the complaint was dismissed.

    Procedural History

    Special Term dismissed the Burners’ action. Weimer, “as assignee of all the rights title and interest of David Burner and Sandra Burner,” appealed to the Appellate Division.
    The Appellate Division affirmed, without addressing standing. The dissenting judge believed the assignment was valid under state law.
    Weimer then appealed to the New York Court of Appeals.

    Issue(s)

    Whether a taxpayer’s action, commenced by qualified taxpayers, can be assigned to an individual who is not demonstrated to be a taxpayer, thereby granting that individual standing to continue the action.

    Holding

    No, because it is contrary to public policy for a taxpayer’s action to be assigned to one who is not shown to have been a taxpayer at the relevant time; therefore, the assignee lacks standing to continue the action.

    Court’s Reasoning

    The Court of Appeals determined that taxpayer status is a sine qua non for maintaining a taxpayer’s action, whether the action is based on statutory or common-law grounds. The court emphasized that the purpose of granting standing to taxpayers is to prevent an “impenetrable barrier to any judicial scrutiny” of governmental actions and to provide a remedy to those who ultimately bear the burden of unjust governmental actions. The court distinguished between a taxpayer acting with mixed motives (personal and public benefit), which is permissible, and a taxpayer allowing their status to be used by an unqualified person, which is not. It also noted that if a taxpayer plaintiff loses their taxpayer status during the action, the action abates unless a qualified person is substituted. The court reasoned that allowing the assignment of a taxpayer’s action to a non-taxpayer would circumvent the policy rationale behind granting standing to taxpayers in the first place. The court stated, “As a matter of public policy, a taxpayer’s grievance does not exist apart from his status as a taxpayer and, therefore, may not be assigned except to another who has such status.” Therefore, the assignment was deemed against public policy, and Weimer lacked standing to appeal. The court emphasized that allowing the assignment of a taxpayer’s action to a non-taxpayer would extend the reach of such actions far beyond their intended purpose.

  • People v. Olivo, 428 N.E.2d 313 (N.Y. 1981): Establishing Larceny in Self-Service Stores Before Exit

    People v. Olivo, 428 N.E.2d 313 (N.Y. 1981)

    In the context of self-service stores, larceny can be established if a customer exercises control over merchandise that is wholly inconsistent with the store’s continued rights, even if the customer is apprehended before leaving the store.

    Summary

    The New York Court of Appeals addressed whether a person could be convicted of larceny for shoplifting if apprehended with goods inside a store, before exiting. The Court held that a larceny conviction could be sustained even if the shoplifter was caught inside the store, provided that the customer’s actions demonstrated control over the merchandise inconsistent with the owner’s rights. The Court emphasized that the evolution of larceny law necessitates a focus on the defendant’s intent and exercise of dominion and control over the property, particularly within the context of self-service stores.

    Facts

    In People v. Olivo, the defendant concealed wrenches in his clothing while in a department store and was apprehended a few feet from the exit. In People v. Gasparik, the defendant removed the price tag and sensormatic device from a leather jacket, put it on, and headed toward the exit of the floor before being stopped. In People v. Spatzier, the defendant placed a book in his attaché case while in a bookstore, and an altercation ensued when he was accused of stealing.

    Procedural History

    In all three cases, the defendants were convicted of petit larceny. The convictions were affirmed by the Appellate Term. The cases were consolidated on appeal to the New York Court of Appeals due to the common legal issue.

    Issue(s)

    Whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to establish the elements of larceny when the shoplifter was apprehended inside the store, before exiting.

    Holding

    Yes, because in the context of self-service stores, a taking can be established by evidence that a customer exercised control over merchandise wholly inconsistent with the store’s continued rights, even without leaving the store.

    Court’s Reasoning

    The Court traced the evolution of larceny from common law to modern statutes, noting that the emphasis has shifted from a trespassory taking to the intent and exercise of dominion and control over the property. The Court acknowledged that self-service stores invite customers to handle merchandise, thus implying consent to possession for a limited purpose. However, this consent does not preclude a larceny conviction if the customer’s actions are inconsistent with the owner’s rights.

    The Court stated, “If the customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and the other elements of the crime are present, a larceny has occurred. Such conduct on the part of a customer satisfies the ‘taking’ element of the crime.”

    The Court identified several factors that could demonstrate such control, including concealment of goods, furtive behavior, proximity to an exit, and possession of shoplifting devices.

    The court reasoned that it is impossible to delineate all situations establishing a taking, but any attending circumstance bearing on whether the shopper exercised control inconsistent with the owner’s rights is relevant.

    Applying these principles, the Court found sufficient evidence in each case to raise a factual question as to the defendants’ guilt. In Olivo, the defendant concealed goods and was near the exit. In Gasparik, the defendant removed the price tag and sensor and attempted to leave the floor. In Spatzier, the defendant concealed a book in his attaché case after looking furtively around.

    The Court concluded that a customer crossing the line between limited rights to handle merchandise and the store owner’s rights may be prosecuted for larceny. This rule supports the interests and operation of self-service shops.

    There were no dissenting or concurring opinions.

  • Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981): The Indefinite Duty Not to Solicit Former Customers After Sale of Good Will

    Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981)

    When a business is sold, the seller has a permanent, implied duty to refrain from soliciting former customers to protect the transferred good will, regardless of any express covenants restricting competition.

    Summary

    Mohawk Maintenance Co. sued Kessler, the former owner, for soliciting its customers after selling the business. The court addressed whether the duty not to solicit former customers after the sale of a business’s good will is limited in duration. The court held that this duty is permanent and not subject to the “reasonableness” test applied to express covenants restricting competition. The court reasoned that the implied duty protects the transferred good will, a vested property right of indefinite duration, and prevents the seller from undermining the value of what was sold.

    Facts

    Kessler sold his controlling interest in Mohawk Maintenance Co., a building maintenance business, for $2,000,000. The sale agreement included an express covenant restricting Kessler from competing with Mohawk for five years. Kessler also entered an employment agreement with Mohawk, containing a separate anticompetition clause effective for 24 months after termination. Kessler voluntarily resigned from Mohawk in August 1978 and formed a competing business, Sure-Way Maintenance Services. Kessler allegedly solicited some of his former Mohawk customers.

    Procedural History

    Mohawk sued Kessler and Sure-Way, seeking damages and an injunction to prevent competition until August 1980 (based on the employment agreement’s anticompetition clause) and a permanent injunction against soliciting Kessler’s former Mohawk customers. Special Term granted partial summary judgment to Mohawk, enjoining Kessler from soliciting customers who were actively dealing with Mohawk in 1972 when the business was sold and finding the contractual limitations on his freedom to compete were intended to remain in effect for the 24-month period following the actual termination of his employment with Mohawk. The Appellate Division affirmed with a minor modification, clarifying that Kessler could accept unsolicited business from former customers. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the duty of a seller of a business to refrain from soliciting the patronage of customers who were actively being served by the business at the time of sale, arising from the transfer of good will, is indefinite in duration or subject to limitations of reasonableness applicable to express covenants not to compete.

    Holding

    Yes, because the duty to refrain from soliciting former customers is permanent and not subject to the durational limitations applied to express covenants restricting competition. The law imposes this duty to prevent the seller from impairing the good will they purported to sell.

    Court’s Reasoning

    The court distinguished between the duty to refrain from soliciting former customers (implied upon the sale of good will) and the duty to refrain from competing (arising only from express agreements). While express covenants restricting competition must be reasonable in scope and duration, the implied duty not to solicit is permanent. The court reasoned that the purchaser of good will acquires the right to expect continued patronage from the business’s established customers. The seller is not allowed to derogate from their own grant, and “ ‘[a] man may not derogate from his own grant; the vendor is not at liberty to destroy or depreciate the thing which he has sold; there is an implied covenant, on the sale of good will, that the vendor does not solicit the custom which he has parted with; it would be a fraud on the contract to do so’ ”. The court found that the sale of Mohawk included a transfer of good will, evidenced by the purchase price and the express covenants against competition. The court emphasized that “the defendants remain under a positive and permanent duty to refrain from interfering with the rights acquired by plaintiff as a result of its acquisition of Mohawk’s ‘good will’”.

  • People v. Berger, 52 N.Y.2d 214 (1981): Corroboration of Accomplice Testimony in Criminal Solicitation

    People v. Berger, 52 N.Y.2d 214 (1981)

    A conviction for criminal solicitation cannot be based solely on the uncorroborated testimony of the solicitee if that solicitee is also considered an accomplice to another crime based on the same facts as the solicitation.

    Summary

    Raphael Berger was convicted of criminal solicitation of perjury based on the testimony of Vivian Gambino, whom he allegedly solicited to lie before a grand jury. Gambino did lie but later recanted. The New York Court of Appeals addressed whether Gambino’s testimony required corroboration, either because she was the solicitee or because she was an accomplice as a matter of law. The Court held that while the crime of criminal solicitation itself does not require corroboration, the uncorroborated testimony of an accomplice cannot sustain a conviction. Because Gambino’s actions in furtherance of the solicitation made her an accomplice to conspiracy, her testimony required corroboration, which was lacking. Therefore, Berger’s conviction was overturned.

    Facts

    Raphael Berger was indicted for grand larceny and criminal solicitation. The solicitation charge stemmed from Berger allegedly urging Vivian Gambino, a loan applicant, to commit perjury before a grand jury investigating a fraudulent loan scheme. Gambino, after initially lying, recanted her testimony before the grand jury.

    Procedural History

    The trial court acquitted Berger of the larceny charges but convicted him of criminal solicitation, despite acknowledging that Gambino’s testimony was the only evidence. The Appellate Division reversed and dismissed the indictment, holding that corroboration was necessary because prior law treated the suborner and subornee of perjury as accomplices. The Court of Appeals affirmed the reversal, but based on different reasoning.

    Issue(s)

    Whether a conviction for criminal solicitation of perjury can be based solely on the uncorroborated testimony of the solicitee.

    Holding

    No, because the solicitee was also an accomplice as a matter of law; therefore her testimony required corroboration under CPL 60.22, which was not provided.

    Court’s Reasoning

    The Court of Appeals stated that at common law, the testimony of a single witness may legally suffice as evidence upon which the jury may found a verdict, but that the Legislature did not impose a corroboration requirement for the crime of criminal solicitation. However, CPL 60.22 requires corroboration of accomplice testimony. The court reasoned that Vivian Gambino was an accomplice as a matter of law because she could be held liable for conspiracy. The court stated “The agreement occurred when she assented to defendant’s solicitation. An overt act occurred (Penal Law, § 105.20), if there was none prior, when she appeared before the Grand Jury and actually lied. Although the overt act is based upon conduct different from the criminal solicitation, the agreement element of the conspiracy is based upon the same facts as the solicitation. Thus, the conspiracy is based upon some of the same facts as the criminal solicitation, and Mrs. Gambino was an accomplice under GPL 60.22.” The court distinguished this holding from People v. Lubow, stating, “Not mentioned and not at issue in Lubow was the situation where the solicitee may be viewed as an accomplice.” Therefore, the court held that Berger’s conviction could not stand on the uncorroborated testimony of an accomplice.

  • People v. Holmes, 52 N.Y.2d 976 (1981): Appellate Court Discretion to Order New Trial After Dismissing a Count

    52 N.Y.2d 976 (1981)

    An intermediate appellate court has discretion under CPL 470.15(2)(a) to order a new trial on remaining counts after dismissing a count for insufficient evidence, even if evidence supports a conviction for a lesser included offense of the dismissed count; a reduction to a lesser included offense is not mandatory.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order for a new trial. The Appellate Division had dismissed one count of the indictment against Holmes for insufficient evidence but ordered a new trial on the remaining counts, which the trial court instructed the jury not to consider if they found Holmes guilty on the first count. The Court of Appeals held that CPL 470.15(2)(a) gives the Appellate Division discretion to order a new trial, and reducing the conviction to a lesser included offense is not mandated by the statute. The dissent argued that the Appellate Division should have reduced the conviction to a lesser included offense.

    Facts

    Anthony Holmes was indicted and tried on multiple counts. The jury found him guilty on the first count. The trial court had instructed the jury not to consider the remaining counts if they found the defendant guilty under the first count. The Appellate Division dismissed the first count for insufficient evidence.

    Procedural History

    The trial court convicted Holmes. The Appellate Division dismissed the first count of the indictment and ordered a new trial on the remaining counts. The People appealed to the New York Court of Appeals, arguing that the Appellate Division should have reduced the conviction to a lesser included offense rather than ordering a new trial. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the Appellate Division, upon dismissing a count of an indictment for insufficiency of evidence, is required to reduce the conviction to a lesser included offense if the evidence is sufficient to support such a conviction, or whether it has discretion to order a new trial on the remaining counts.

    Holding

    No, because CPL 470.15(2)(a) grants the Appellate Division discretion in such a situation; it “may modify the judgment by changing it to one of conviction for the lesser offense,” but is not required to do so.

    Court’s Reasoning

    The Court of Appeals focused on the permissive language of CPL 470.15(2)(a), which states the intermediate appellate court “may modify the judgment by changing it to one of conviction for the lesser offense.” The court emphasized the word “may,” concluding that the statute does not mandate a reduction to a lesser included offense. The court distinguished this case from People v. Dlugash, 41 N.Y.2d 725, noting that Dlugash involved the dismissal of a single-count indictment where no retrial was possible, whereas here, a new trial was ordered on remaining counts. The dissent argued that the majority ignored established rules of statutory construction, which dictate that permissive words conferring power upon public officers are generally mandatory when the act authorized concerns the public interest or individual rights. The dissent contended that the Appellate Division erred in ordering a new trial “on the law” and should have reduced the conviction to a lesser included offense. The dissent emphasized that CPL 470.20 requires corrective action to rectify any injustice and protect the rights of the respondent (the People). According to the dissent, ordering a new trial dissolved the jury’s finding of guilt on a lesser charge without articulating any reason for doing so, which was an injustice to the People. The majority countered the dissent’s interpretation of CPL 470.20(4), clarifying that it merely sets forth the steps to be taken concerning the defendant’s sentence after the intermediate appellate court has in fact reduced the conviction to one for a lesser included offense and does not require the reduction itself.

  • People v. Borrello, 52 N.Y.2d 952 (1981): Jury Instructions on Intent for Burglary

    52 N.Y.2d 952 (1981)

    In a burglary trial, where the court instructs the jury that the defendant must have entered the premises with the intent to commit a crime, the court’s refusal to specify that the intended crime must be a felony or misdemeanor is not reversible error, absent a specific request to charge that trespass cannot be the underlying intended crime.

    Summary

    John Borrello and Efrain Arroyo were convicted of third-degree burglary. On appeal, they argued that the trial court erred by not specifying to the jury that the crime they intended to commit upon entering the premises had to be a felony or misdemeanor, and by failing to instruct that the lesser included offense of trespass could not be the underlying intended crime for burglary. The Court of Appeals affirmed, holding that because the trial court charged the jury that the defendants needed to have intent to commit a crime when entering the building, its refusal to further specify the nature of the crime was not reversible error. The court also held that the defendants failed to preserve the argument regarding trespass for appellate review because they did not specifically request such a charge.

    Facts

    The defendants, John Borrello and Efrain Arroyo, were tried and convicted of burglary in the third degree. During the trial, the court instructed the jury that to convict the defendants, they had to find that the defendants entered the premises with the intent to commit a crime. The defendants requested the court specify that the intended crime must be a felony or a misdemeanor, a request which the court denied.

    Procedural History

    The defendants were convicted of burglary in the third degree in the trial court. They appealed to the Appellate Division, which affirmed their convictions. The defendants then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court committed reversible error by refusing the defendants’ request to specify that the intended crime for burglary had to be a felony or misdemeanor, given that the court instructed the jury that the defendants needed to have intent to commit a crime when entering the building?

    2. Whether the trial court erred by not instructing the jury that trespass could not be the underlying intended crime for burglary?

    Holding

    1. No, because the trial court charged the jury that the defendants needed to have intent to commit a crime when entering the building, its refusal to further specify the nature of the crime was not reversible error.

    2. No, because the defendants failed to preserve the argument regarding trespass for appellate review by not specifically requesting such a charge.

    Court’s Reasoning

    The Court of Appeals reasoned that the trial court’s instruction that the defendants had to enter the premises with the intent to commit a crime was sufficient. The court noted that the defendants’ request for further specification was refused, but this refusal did not constitute reversible error in light of the initial charge. The court emphasized that the core element of burglary is the intent to commit a crime within the premises.

    Regarding the issue of trespass as the underlying intended crime, the court found that the defendants failed to properly preserve this argument for appellate review. Although defense counsel alluded to the point during a colloquy with the trial judge after the charge, he never formally requested a specific instruction that trespass could not be the underlying crime. Because the defense did not make a clear and explicit request for this specific charge, the Court of Appeals declined to consider the argument on appeal. The court thus applied the general rule that a party must make their position known to the trial court to preserve an issue for appellate review.

    The court does not provide specific quotes, but the holding relies on established principles of criminal law regarding the elements of burglary and the preservation of legal arguments for appeal.

  • Caprara v. Chrysler Corp., 52 N.Y.2d 114 (1981): Admissibility of Post-Accident Design Changes in Products Liability Cases

    Caprara v. Chrysler Corp., 52 N.Y.2d 114 (1981)

    In a strict products liability case, evidence of post-accident design changes is admissible to demonstrate a manufacturing defect, as the focus is on the product’s condition rather than the manufacturer’s negligence.

    Summary

    Fausto Caprara sued Chrysler for negligence and strict products liability after a defect in his car’s steering caused an accident. The key issue on appeal was the admissibility of evidence showing Chrysler changed the ball joint design after Caprara’s accident. The court held that evidence of the post-accident design change was admissible in the strict products liability claim to demonstrate a manufacturing defect. The court reasoned that strict products liability focuses on the defect itself, not the manufacturer’s fault, thus making evidence of subsequent changes relevant and admissible.

    Facts

    Caprara was driving his Dodge Coronet when the steering wheel seized, causing an accident that resulted in quadreplegia. He sued Chrysler, alleging negligence and strict products liability. Caprara’s expert testified that a defective lower front ball joint caused the accident, displaying excessive wear despite the car’s low mileage. Over Chrysler’s objection, Caprara introduced evidence that Chrysler had modified the ball joint design after the accident, adding a plastic insert. Chrysler argued this change was solely to discourage premature replacements, but Caprara’s expert countered that the change would alleviate the excessive wear.

    Procedural History

    The trial court submitted the products liability case to the jury solely on a theory of defective manufacture and assembly. The jury found in favor of Caprara. The Appellate Division affirmed liability but modified the damages award. Chrysler appealed, arguing that the evidence of the post-accident design change was inadmissible and that the trial court erred in failing to instruct the jury to disregard expert testimony on that subject. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether evidence of a post-accident design change is admissible in a strict products liability case to demonstrate a manufacturing defect.
    2. Whether the trial court erred in failing to instruct the jury to disregard expert testimony regarding the effect of the design change.

    Holding

    1. Yes, because in strict products liability, the focus is on the defect itself, not the manufacturer’s negligence, making evidence of subsequent changes relevant and admissible to prove the existence of a defect.
    2. No, because the expert was qualified to testify regarding the mechanics of ball joints, and the failure to instruct the jury to disregard the testimony could be construed as a decision not to do so.

    Court’s Reasoning

    The Court of Appeals distinguished between negligence and strict products liability. In negligence cases, post-accident repairs are generally inadmissible because they relate to hindsight rather than foresight. However, strict products liability focuses on the defect itself, regardless of the manufacturer’s knowledge or fault. The court reasoned that excluding post-accident design changes in strict products liability cases would undermine the doctrine’s purpose of easing the burden of proof for consumers injured by defective products. The court noted, “the very economic realities that shaped these legal changes… undermine any assumption that it is necessary to pay the price of sheltering defendants in strict products liability litigation from evidentiary use of their product changes in order to persuade them to make improvements to which self-interest must propel them in any event.” The court emphasized that evidence of the design change supported the “manufacturing and assembly” defect theory, helping the jury understand the defect by illustrating the difference between the original and modified ball joints. The court also addressed the expert testimony, finding the expert qualified and concluding that the trial court’s failure to instruct the jury to disregard the testimony was not an error.