New York Law Review

Tag: Waiver

  • People v. Meierdiercks, 68 N.Y.2d 613 (1986): Adjournment ‘Sua Sponte’ and Speedy Trial Rights

    People v. Meierdiercks, 68 N.Y.2d 613 (1986)

    When a court adjourns a preliminary hearing *sua sponte* (on its own motion) without the defendant’s request or consent, the resulting delay is charged against the prosecution for speedy trial purposes.

    Summary

    This case addresses whether delays resulting from adjournments of preliminary hearings should be charged against the prosecution under New York’s speedy trial statute (CPL 30.30). The Court of Appeals held that when a local criminal court adjourns a hearing *sua sponte*, without the defendant’s request or consent, that delay is attributable to the People. However, delays resulting from adjournments requested or consented to by the defendant are excluded when calculating speedy trial time. The critical factor is whether the defendant waived the delay by requesting or consenting to the adjournment, not whether the delay prevented the People from seeking an indictment.

    Facts

    In *People v. Meierdiercks*, the local criminal court adjourned the preliminary hearing *sua sponte* after defense counsel pointed out that the complaint inaccurately described the purportedly stolen check. The defendant did not request or consent to this adjournment. In contrast, in *People v. Boyd* and *People v. Harris*, the defendants either requested or consented to adjournments of their preliminary hearings.

    Procedural History

    In *Meierdiercks*, the defendant sought dismissal of the indictment, arguing that the pre-indictment delay violated her speedy trial rights under CPL 30.30. The lower court granted the motion and dismissed the indictment. The Appellate Division affirmed. In *Boyd* and *Harris*, the defendants’ motions to dismiss the indictments based on similar speedy trial grounds were denied. The Appellate Division affirmed these denials as well. All three cases were appealed to the New York Court of Appeals.

    Issue(s)

    Whether an adjournment of a preliminary hearing ordered *sua sponte* by the local criminal court, without the defendant’s request or consent, is chargeable to the People for purposes of CPL 30.30 speedy trial calculations.

    Holding

    Yes, because the controlling consideration is whether the defendants waived the delay in the proceedings by requesting or consenting to the adjournments; if there is no waiver, the delay is charged against the People.

    Court’s Reasoning

    The Court of Appeals emphasized that the critical issue is whether the defendant waived their right to a speedy trial by requesting or consenting to the adjournment. CPL 30.30(4)(b) excludes periods of delay resulting from adjournments requested or consented to by the defendant. The court distinguished this case from situations where the defendant actively prevents the People from obtaining an indictment. The court stated, “the controlling consideration is not whether defendants’ actions prevented the People from obtaining accusatory instruments sufficient for trial, but whether defendants waived the delay in the proceedings by requesting or consenting to the adjournments.” In *Meierdiercks*, because the adjournment was *sua sponte* and not at the defendant’s request or with her consent, the delay was properly charged against the People. In *Boyd* and *Harris*, the defendants had expressly waived their objection to the delay, so the delay periods were correctly excluded. This case clarifies that a defendant’s passive conduct is not equivalent to a waiver; an express request or consent is necessary to exclude the delay period from the speedy trial calculation.

  • Gilbert Frank Corp. v. Federal Ins. Co., 63 N.Y.2d 828 (1984): Enforceability of Contractual Limitation Periods in Insurance Policies

    Gilbert Frank Corp. v. Federal Ins. Co., 63 N.Y.2d 828 (1984)

    An insured is bound by the terms of an insurance contract, including limitation periods for bringing suit, whether they have read the policy or not, and can protect itself by commencing an action before the limitation period expires or by obtaining a waiver or extension from the insurer.

    Summary

    Gilbert Frank Corp. sustained a loss covered by its insurance policy with Federal Insurance Co. The policy contained a 12-month limitation period for commencing legal action. Although Federal Insurance Co. investigated the claim and requested documentation, Gilbert Frank Corp. did not file suit until after the 12-month period expired. The court held that the insured was bound by the 12-month limitation period in the policy and the insurer’s actions did not constitute a waiver or estoppel, especially in light of a non-waiver agreement executed by the insured. The insured’s failure to read the policy and commence a timely action was fatal to its claim.

    Facts

    Gilbert Frank Corp. suffered a loss covered under an insurance policy issued by Federal Insurance Co.
    The insurance policy contained a provision requiring any lawsuit to be commenced within 12 months of the loss.
    Ten months after the loss, Federal Insurance Co. notified Gilbert Frank Corp. of the need to file a claim.
    Federal Insurance Co. requested further documentation from Gilbert Frank Corp. regarding the claim.
    After the 12-month limitation period expired, Gilbert Frank Corp. executed a non-waiver agreement.
    Gilbert Frank Corp. subsequently commenced a lawsuit against Federal Insurance Co. to recover for the loss.

    Procedural History

    The lower court ruled in favor of Gilbert Frank Corp.
    The Appellate Division affirmed the lower court’s decision.
    Federal Insurance Co. appealed to the New York Court of Appeals.

    Issue(s)

    Whether the 12-month limitation period in the insurance policy is enforceable against the insured, barring their lawsuit.
    Whether the insurer’s conduct in investigating the claim and requesting documentation constituted a waiver of the limitation period or created an estoppel preventing the insurer from asserting the limitation period as a defense.

    Holding

    No, the 12-month limitation period is enforceable because the insured is bound by the terms of the contract, whether read or not, and failed to take timely action to protect its rights.
    No, the insurer’s conduct did not constitute a waiver or create an estoppel because the insured executed a non-waiver agreement, and the insurer’s actions did not mislead the insured to its prejudice.

    Court’s Reasoning

    The court reasoned that the 12-month limitation period in the insurance policy was a valid and enforceable provision. The court stated, “an insured is bound by the terms of the contract whether read or not and can protect itself by either beginning an action before expiration of the limitation period or obtaining from the carrier a waiver or extension of its provision.”
    The court found that the insurer’s actions in investigating the claim and requesting documentation did not constitute a waiver of the limitation period or create an estoppel. The court emphasized the existence of a non-waiver agreement executed by the insured, which preserved the insurer’s rights under the policy. The court also noted that the insurer alerted the insured to the need to file a claim two months before the limitation period expired, giving the insured ample opportunity to protect its rights.
    The court rejected the argument that the insurer’s conduct misled the insured to its prejudice, stating that “the prejudice to plaintiff’s rights results from its failure to institute action prior to expiration of the 12-month limitation period, not from its execution thereafter of the nonwaiver agreement.”
    The court distinguished the case from situations where the insurer’s conduct actively lulled the insured into delaying suit until after the limitation period expired. Here, the insurer’s actions were consistent with its right to investigate the claim, and the insured failed to take the necessary steps to protect its own interests.
    The court noted that while the insured’s lack of knowledge of the policy provisions did not foreclose reliance on estoppel entirely, the insurer had no obligation to call the insured’s attention to the policy provisions and had, in fact, done more than was required by alerting the plaintiff to the need for action.

  • United Commodities-Greece v. Fidelity Int’l Bank, 64 N.Y.2d 449 (1985): Strict Compliance Required for Letter of Credit

    United Commodities-Greece v. Fidelity Int’l Bank, 64 N.Y.2d 449 (1985)

    A beneficiary of a letter of credit must strictly comply with its terms; any discrepancies in the presented documents, no matter how minor, allow the issuing bank to refuse payment, and a bank’s mistaken belief of compliance does not constitute a waiver of the strict compliance standard.

    Summary

    United Commodities-Greece obtained letters of credit to pay Pillsbury for a corn shipment to the Soviet Union. The letters required specific documents upon loading, but allowed for alternative documentation (“Special Conditions”) if no vessel was nominated by a certain date. Pillsbury presented documents under the Special Conditions, but the bank guarantees were non-conforming. Fidelity initially indicated ‘substantial compliance’ but later denied payment. The Court of Appeals held that strict compliance with the letter of credit terms is required. Fidelity’s initial misinterpretation and statements did not constitute a waiver because Fidelity did not knowingly relinquish a known right, and Pillsbury did not demonstrate detrimental reliance on Fidelity’s statements.

    Facts

    Pillsbury contracted to sell corn to United Commodities for shipment to the Soviet Union. To facilitate payment, United Commodities obtained two letters of credit. The letters of credit required presentation of specific documents related to the loading of the corn on a vessel nominated by United Commodities before November 30, 1976. A “Special Conditions” clause allowed Pillsbury to draw against the letters by presenting a warehouse or dock receipt and a bank guarantee if United Commodities failed to nominate a vessel by November 30th. United Commodities failed to nominate a vessel by the deadline.

    Procedural History

    Pillsbury sued when payment was refused. The trial court ruled against Pillsbury on claims against Republic and Trade Development Banks, but in favor of Pillsbury against Fidelity International Bank, finding Fidelity had waived non-conformity. The Appellate Division modified the trial court’s decision, striking the judgment against Fidelity and granting judgment in Fidelity’s favor, holding there was no waiver. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the presentation of documents under the “Special Conditions” clause of a letter of credit requires strict compliance with the specified terms, or whether substantial compliance is sufficient. Whether Fidelity International Bank waived its right to demand strict compliance with the letter of credit’s terms, or is estopped from asserting non-compliance.

    Holding

    1. No, because New York law requires strict compliance with the terms of a letter of credit, meaning that “the papers, documents and shipping directions must be followed as stated in the letter” and no substitution or equivalent will suffice.
    2. No, because there was no intentional relinquishment of a known right by Fidelity, nor was there detrimental reliance by Pillsbury on any misleading representation by Fidelity.

    Court’s Reasoning

    The court emphasized New York’s requirement of strict compliance with letter of credit terms, citing Anglo-South Am. Trust Co. v Uhe, 261 NY 150. The court stated that the bank’s role is ministerial and requiring it to determine the substantiality of discrepancies would be inconsistent with its function. The court found that the bank guarantees provided by Pillsbury were fatally nonconforming because they omitted an obligation arising from a Pillsbury failure to “remit to the negotiating bank, free of charges, the covering Bill of Lading.”

    Regarding waiver, the court found no proof that Fidelity knew of the nonconformity and intentionally elected to ignore it. Citing Werking v Amity Estates, 2 NY2d 43, 52, the court stated there was no “ ‘intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it.’ ” The court found that Fidelity’s initial belief in substantial compliance was a mistake and not a waiver.

    Regarding estoppel, the court stated Pillsbury would have to prove that it relied to its detriment on a misleading representation of the bank. The court found that the telex from Fidelity to Banque de la Mediterranee was not a representation to Pillsbury. Although Pillsbury argued reliance on a statement by Grayson, the court did not find that conversation occurred. Furthermore, Pillsbury failed to introduce any evidence that it would have been able, in the remaining time, to cure the defect in the guarantee had Fidelity brought it specifically to its attention.

  • விஷே.1245Save the Pine Bush, Inc. v. City of Albany, 62 N.Y.2d 990 (1984): Estoppel and Waiver in Zoning Disputes

    Save the Pine Bush, Inc. v. City of Albany, 62 N.Y.2d 990 (1984)

    A municipality waives defenses of standing and statute of limitations in a zoning challenge if it fails to raise them in its answer or pre-answer motion to dismiss.

    Summary

    Save the Pine Bush, Inc. sued the City of Albany challenging a zoning amendment, arguing that the City failed to provide proper notice to the County Planning Board. The City argued that the plaintiffs lacked standing, the action was time-barred, and that no notice was required. The Court of Appeals held that the City waived its standing and statute of limitations defenses by failing to raise them in its answer or a pre-answer motion. The Court also found that the City had not demonstrated substantial prejudice to support its claim of laches and that proper notice to the County Planning Board was required.

    Facts

    The City of Albany enacted a zoning amendment. Save the Pine Bush, Inc. challenged the amendment, alleging that the City failed to provide notice to the County Planning Board as required by the Westchester County Administrative Code. The plaintiffs commenced the action 16 months after the enactment of the amendment. No construction had begun on the property when the suit was filed.

    Procedural History

    The lower court granted summary judgment to Save the Pine Bush, Inc. The City of Albany appealed. The Appellate Division affirmed. The City of Albany then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the City waived its defenses of standing and statute of limitations by failing to assert them in its answer or a pre-answer motion to dismiss.
    2. Whether the City demonstrated sufficient prejudice to establish laches.
    3. Whether notice to the County Planning Board of hearings on the proposed zoning amendment was required.

    Holding

    1. Yes, because CPLR 3211(e) requires such defenses to be raised in the answer or a pre-answer motion to dismiss to avoid waiver.
    2. No, because the City did not demonstrate substantial prejudice resulting from the delay.
    3. Yes, because section 277.61 of the Westchester County Administrative Code requires such notice.

    Court’s Reasoning

    The Court reasoned that under CPLR 3211(e), the City waived its defenses of standing and the statute of limitations because it failed to raise them in its answer or in a pre-answer motion to dismiss. CPLR 3211(e) states that “an objection that the summons and complaint… was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon good cause shown.” The Court cited Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657 and Trayer v State of New York, 90 AD2d 263, 265-266 to support this holding.

    Regarding laches, the Court found that the City failed to demonstrate substantial prejudice resulting from the 16-month delay. The Court noted that no construction had begun on the property and that the assertion regarding the potential loss of federal funds was insufficient to establish actual prejudice.

    The Court agreed with the lower courts that notice to the County Planning Board was required under section 277.61 of the Westchester County Administrative Code. The Court distinguished between the presumption of constitutionality, which requires rebutting evidence beyond a reasonable doubt, and the presumption of regularity of procedures, which only shifts the burden of going forward. The City Clerk’s affidavit did not establish a normal procedure of giving the required notice, but only that notices were mailed when they were required under the City’s interpretation of section 277.61.

  • Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201 (1984): Enforcing Proof of Loss Requirements After Insurer Demand

    Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201 (1984)

    When an insurer makes a written demand for proof of loss and provides suitable forms, the insured’s failure to file proof of loss within 60 days is an absolute defense for the insurer, absent waiver or estoppel.

    Summary

    This case clarifies the interpretation of Sections 168 and 172 of the New York Insurance Law regarding proof of loss requirements in fire insurance policies. The Court of Appeals held that when an insurer provides written notice and forms for proof of loss, the insured’s failure to comply within 60 days constitutes an absolute defense for the insurer, unless the insurer waives the requirement or is estopped from asserting it. The court also addressed whether an insurer waives the proof of loss defense by asserting other defenses in an answer filed before the 60-day period expires and clarified the procedure for motions regarding corporate capacity to sue.

    Facts

    Igbara Realty Corp., a dissolved corporation, purchased a fire insurance policy from New York Property Insurance Underwriting Association. After the insured property was destroyed by fire, Igbara filed a claim. The insurer sent a written demand for proof of loss. Igbara did not submit the proof of loss within 60 days. The insurer initially filed an answer denying liability but later sought to amend its answer to include the failure to file proof of loss and Igbara’s lack of capacity to sue as defenses. Bonus Warehouse, Syd’s Decorators and Trexler also had similar issues regarding failure to submit timely proofs of loss after a demand from their insurers.

    Procedural History

    In Igbara, the Supreme Court dismissed the complaint based on Igbara’s lack of capacity to sue. The Appellate Division reversed, denying the motion to dismiss but granting leave to assert the lack of capacity defense, while denying leave to assert the failure of proof of loss defense, finding the insurer had repudiated the policy. The Appellate Division granted leave to appeal. In Bonus Warehouse, Special Term denied the insurer’s motion for summary judgment, and the Appellate Division affirmed. In Syd’s Decorators, Special Term denied the insurer’s motion for summary judgment, but the Appellate Division reversed. In Trexler, Special Term denied both parties’ motions for summary judgment, but the Appellate Division modified by granting the insurer’s motion and dismissing the complaint. All cases were appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether failure to file proof of loss within 60 days after a Section 172 demand is an absolute defense for the insurer.
    2. Whether the defense of failure to file proof of loss is waived if the insurer files an answer alleging other defenses before the 60-day period expires.
    3. Whether, in Igbara, the complaint could be dismissed for lack of capacity to sue on motion papers that did not explicitly request dismissal on that ground but did seek summary judgment for failure to file proof of loss.

    Holding

    1. Yes, because when an insurer gives written notice and provides suitable forms for proof of loss, the insured’s failure to furnish proofs of loss within sixty days after receipt of the notice is an absolute defense.
    2. No, because an insurer does not waive the proof of loss defense by asserting other defenses in an answer filed before the 60-day period expires, as long as the insurer asserts the defense in an amended answer.
    3. No, because it was improper to grant summary judgment on the ground of incapacity when the motion did not clearly seek such relief and the opposing party had no reason to present opposition on that issue.

    Court’s Reasoning

    The Court reviewed the history of proof of loss requirements, emphasizing that prior to Section 172 of the Insurance Law, strict compliance was required. Section 172 modifies this strict rule only to the extent of requiring the insurer to make a written demand for proof of loss and provide blank forms. The Court stated that if the insurer makes such a demand, the insured must comply within 60 days to be deemed in compliance with the policy. The court emphasized that the language of the statute goes no further than to require that the insurer bring to the attention of the insured, by making written demand for proofs and providing blank forms, the necessity for filing such proofs.

    Regarding waiver, the Court held that the critical factor is whether the insurer’s actions are inconsistent with asserting the defense. Serving an answer asserting other defenses before the 60-day period expires is not such an inconsistency. The insurer must specifically and with particularity deny the insured’s failure to perform the condition precedent of filing proof of loss to preserve the defense. The Court noted, “Critical to the determination of waiver is whether the act said to constitute a repudiation of liability on the policy is inconsistent with assertion of the defense.”

    Finally, the Court held that Special Term erred in granting summary judgment on the issue of Igbara’s capacity to sue because it was not clear that the opponent of the motion had in fact put before the court all of its factual and legal contentions.

  • Jamaica Savings Bank v. Sutton, 423 N.E.2d 879 (N.Y. 1981): Equitable Relief for Delayed Payment When Time is Not Strictly of the Essence

    Jamaica Savings Bank v. Sutton, 423 N.E.2d 879 (N.Y. 1981)

    Equity may intervene to prevent the forfeiture of a substantial interest when a party commits a technical breach related to a payment of money and the other party has not demonstrably changed their position due to the delay.

    Summary

    Jamaica Savings Bank (defendant) appealed a decision that allowed Sutton (plaintiff) to exercise an option to purchase a consolidated mortgage despite a slightly delayed payment. The Court of Appeals held that Sutton’s delayed tender of payment was excusable because the lender had waived strict adherence to the original loan agreement’s repayment schedule, time was explicitly of the essence only for the final payment (which was timely tendered given the holiday), and Sutton faced forfeiting a substantial interest. The court modified the lower court’s judgment to declare Sutton not the owner of the mortgage, subject to Sutton making the required payment within 30 days.

    Facts

    Sutton entered into a loan agreement with Jamaica Savings Bank and a related option agreement to purchase a consolidated mortgage. While the initial agreement specified repayment deadlines, the lender’s conduct suggested a waiver of these strict deadlines. The option agreement stated that time was of the essence only for the final payment due on September 1, 1980, which fell on a legal holiday. Sutton tendered both the June payment and the final payment on September 2, 1980.

    Procedural History

    The Supreme Court initially ruled on the matter. The Appellate Division modified the Supreme Court’s decision, conditioning its order on Sutton tendering payment within 30 days. Jamaica Savings Bank then appealed to the Court of Appeals pursuant to CPLR 5601(d) from the Supreme Court judgment, bringing up for review the prior nonfinal order of the Appellate Division.

    Issue(s)

    1. Whether the lender’s conduct constituted a waiver of strict compliance with the original loan agreement’s payment schedule?
    2. Whether Sutton’s tender of payment on September 2, 1980, was timely, considering that the final payment deadline of September 1, 1980, fell on a legal holiday?
    3. Whether equity should intervene to prevent forfeiture of a substantial interest due to a technical breach, given that the covenant involved was simply for the payment of money and the plaintiff’s position had not changed due to the delay?

    Holding

    1. Yes, because the parties’ course of conduct indicated that the lender waived the time periods for repayment established under the original loan agreement and the option agreement.
    2. Yes, because under General Construction Law § 25(1), tender of payment on the next business day is timely when the due date falls on a legal holiday.
    3. Yes, because in this case, the covenant was simply for the payment of money and plaintiff has shown no change in his position by the delayed tender of payment.

    Court’s Reasoning

    The court reasoned that Jamaica Savings Bank’s actions constituted a waiver of strict adherence to the repayment schedule. Further, because time was explicitly of the essence only for the final payment, and that payment was tendered the next business day after a legal holiday, it was considered timely under General Construction Law § 25(1). The court emphasized the principle that equity may intervene to prevent a forfeiture of a substantial interest despite a technical breach when the covenant is simply for the payment of money and the opposing party hasn’t changed their position because of the delay.

    The court cited W. F. M. Rest. v Austern, 35 NY2d 610, 614, stating equity may properly “intervene to prevent a forfeiture of a substantial interest despite a technical breach or omission by the holder of the interest.”

    The court distinguished this from situations where the delay causes prejudice or a significant change in circumstances for the opposing party. The decision highlights the importance of consistent conduct in contractual relationships and the role of equity in mitigating harsh outcomes resulting from minor technical defaults, particularly in payment obligations. The court also clarified the proper form of relief in a declaratory judgment action, emphasizing that the court should declare the parties’ rights even if the plaintiff is not entitled to the declaration sought.

  • People v. Vivenzio, 62 N.Y.2d 775 (1984): Knowing and Voluntary Waiver of Right to Counsel

    People v. Vivenzio, 62 N.Y.2d 775 (1984)

    A defendant may waive the right to counsel and proceed pro se if the waiver is made knowingly, voluntarily, and intelligently, after being fully aware of the risks and disadvantages of self-representation.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s order and remitted the case for factual determination, holding that the defendant could have knowingly and intelligently waived his right to counsel. Despite his lack of legal expertise and the potential rashness of his decision, the court emphasized that a defendant has the right to self-representation if the choice is made with open eyes. The trial court fulfilled its obligation to ensure the defendant understood the dangers and disadvantages before permitting him to proceed pro se. The Court of Appeals found sufficient evidence in the record to support the conclusion that the defendant’s waiver was knowing and voluntary.

    Facts

    The defendant was an adult with prior involvement in the criminal justice system. He had a lawyer who advised against self-representation but remained available as standby counsel. The defendant insisted on representing himself at trial, despite his attorney’s advice.

    Procedural History

    The County Court permitted the defendant to proceed pro se. The Appellate Division reversed, presumably on the grounds that the waiver was not knowing or voluntary. The Court of Appeals reversed the Appellate Division’s order and remitted the case to the Appellate Division for determination of the facts and consideration of other issues not previously addressed.

    Issue(s)

    Whether the defendant knowingly, voluntarily, and intelligently waived his right to counsel, thereby permitting him to proceed pro se at trial.

    Holding

    Yes, because the record supports a finding that the defendant was aware of the dangers and disadvantages of self-representation and knowingly and voluntarily chose to proceed without counsel.

    Court’s Reasoning

    The Court of Appeals emphasized that a criminal defendant has the right to control their own defense. Quoting United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15, the court stated that “respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice ‘with eyes open’.” The court noted that its only obligation was to ensure that the defendant was aware of the dangers and disadvantages of self-representation before allowing him to proceed. The court found that the trial court fulfilled this obligation by determining that the defendant was an adult with prior criminal justice experience, that he had discussed the decision with his lawyer (who advised against it), and that the lawyer was available as standby counsel. The trial court warned the defendant about his lack of training and knowledge and informed him that he would be held to the same standards as an attorney. Despite these warnings, the defendant insisted on proceeding pro se. The Court of Appeals concluded that there was a sufficient showing that his decision was knowing and voluntary. The court cited Faretta v. California, 422 US 806, as the seminal case establishing the right to self-representation and the standards for waiving the right to counsel, and reiterated the importance of respecting the defendant’s autonomy in making this decision.

  • People v. Ford, 57 N.Y.2d 262 (1982): Waiver of Objection to Improper Lesser Included Offense

    People v. Ford, 57 N.Y.2d 262 (1982)

    A defendant waives the right to object to a trial court’s error in considering or submitting a lesser crime that is not a lesser included offense if the defendant fails to make a timely objection.

    Summary

    The New York Court of Appeals held that a defendant waives the right to object to the trial court’s consideration or submission of a lesser crime that is not a lesser included offense of the indicted crime if the defendant does not make a timely objection. The Court reasoned that the constitutional right to be tried only upon indictment is not a limitation on the courts, but on the State, and that failing to object to an improper lesser included offense submission is a waivable defect, not a jurisdictional one. Therefore, convictions for crimes that are technically not lesser included offenses can stand if the defendant did not object at trial.

    Facts

    Raymond Ford was indicted for robbery. The trial court indicated it would consider grand larceny as a lesser included offense. Ford did not object and was convicted of grand larceny. Gordon Simpson was indicted for manslaughter. The prosecution requested the court to consider assault as a lesser included offense, and Simpson did not object. He was convicted of assault. James Williams was indicted for robbery. He requested the court submit assault and grand larceny as lesser included offenses to the jury, which it did. He was convicted of assault. In each case, the offense of which the defendant was convicted was conceded to be neither the crime for which he was indicted nor a proper lesser included offense under People v. Glover.

    Procedural History

    In Ford’s case, the Appellate Division reversed the conviction and dismissed the indictment, holding that grand larceny was not a lesser included offense and the defect was a non-waivable jurisdictional error. In Simpson’s case, the Appellate Division affirmed the conviction. In Williams’ case, the Appellate Division affirmed the conviction. The Court of Appeals consolidated the appeals to address the common issue of waiver.

    Issue(s)

    Whether a defendant, by failing to object to the trial court’s consideration or submission of a crime that is not a lesser included offense of the indicted crime, waives the right to challenge the conviction on that basis.

    Holding

    Yes, because an error by the trial court in submitting or considering a lesser crime arising out of the same transaction that is not a lesser included offense does not affect the court’s competence to entertain the action; it affects only its authority to enter a judgment on the merits against the defendant on that specific charge, and such an error can be waived.

    Court’s Reasoning

    The Court of Appeals reasoned that while the New York Constitution requires indictment by a grand jury for infamous crimes, this is a limitation on the State, not a jurisdictional bar to the courts if the defendant fails to object. The court had both personal and subject matter jurisdiction over the offenses due to the initial valid indictment. CPL 300.50(1) provides that any error in submitting a lesser included offense is waived if no timely objection is made. The court emphasized that “a valid and sufficient accusatory instrument is a non waivable jurisdictional prerequisite to a criminal prosecution” (People v Harper, 37 NY2d 96, 99), and “[u]ntil the grand jury shall act, no court can acquire jurisdiction to try” (People ex rel. Battista v Christian, 249 NY 314, 319), but that in each case before them, a valid indictment was returned. The court distinguished cases where no indictment was returned, or where the indictment was inherently defective. The court stated that the constitutional function is to ensure that “before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty” (People v Iannone, 45 NY2d 589, 594). Because the Grand Jury had acted by issuing an indictment, the court reasoned that the purpose of the constitutional provision had been satisfied. Therefore, the failure to object constituted a waiver. Chief Judge Cooke wrote a concurring opinion noting that this decision effectively overruled People ex rel. Gray v. Tekben, 57 NY2d 651.

  • Jefpaul Garage Corp. v. Presbyterian Hosp., 61 N.Y.2d 442 (1984): Landlord’s Acceptance of Rent and Waiver of Lease Violations

    Jefpaul Garage Corp. v. Presbyterian Hosp., 61 N.Y.2d 442 (1984)

    A landlord’s acceptance of rent during the lease term, even with knowledge of lease violations, does not automatically waive the right to deny renewal of the lease, especially when the lease contains a non-waiver clause.

    Summary

    Jefpaul Garage Corp. sought to renew its lease with Presbyterian Hospital. The hospital argued Jefpaul had violated the lease through late payments and unauthorized subletting. Jefpaul obtained a “Yellowstone” injunction tolling the cure period. The hospital continued to accept rent. Jefpaul argued the rent acceptance constituted a waiver of the violations, entitling it to renew the lease. The New York Court of Appeals held that accepting rent during the lease term, particularly under a Yellowstone injunction and with a non-waiver clause in the lease, does not automatically waive the landlord’s right to deny renewal based on lease violations. The case turns on the specific language of the lease and the equitable considerations preventing the landlord from terminating during the tolling period.

    Facts

    Presbyterian Hospital leased property to Jefpaul Garage Corp. for use as a public garage and gas station. The lease included renewal options. A dispute arose when Jefpaul attempted to exercise its first renewal option. Presbyterian Hospital claimed Jefpaul was in default due to late rent and tax payments, and unauthorized subletting. Jefpaul obtained a “Yellowstone” injunction to toll the cure period. Presbyterian Hospital continued to accept rent payments through the end of the original lease term.

    Procedural History

    Jefpaul sued for a declaration of its rights and moved for summary judgment, arguing that Presbyterian Hospital waived its objections to the renewal by accepting rent. Special Term denied the motion. The Appellate Division reversed, granting Jefpaul summary judgment. Presbyterian Hospital appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Presbyterian Hospital’s acceptance of rent during the lease term, with knowledge of alleged lease violations, constituted a waiver of those violations as a matter of law, thereby entitling Jefpaul to renew the lease.

    Holding

    1. No, because the lease contained a non-waiver clause, and the acceptance of rent during the period of the “Yellowstone” injunction did not demonstrate a voluntary relinquishment of the landlord’s rights. The question of whether Jefpaul violated the lease and cured any such violation are questions of fact.

    Court’s Reasoning

    The Court of Appeals reasoned that a waiver is a voluntary abandonment of a known right and must be proven. While waiver can sometimes be inferred from rent acceptance, it cannot frustrate the parties’ reasonable expectations as expressed in the lease, especially when a non-waiver clause exists. The lease contained a clear non-waiver clause, stating: “The receipt by Landlord of rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach and no provision of this lease shall be deemed to have been waived by Landlord unless such waiver be in writing signed by the Landlord.” The court emphasized that parties are bound by the terms to which they mutually assent. The court noted the “Yellowstone” injunction prevented the landlord from terminating the lease, making it inequitable to interpret rent acceptance during that period as a waiver. The court distinguished this case from Atkin’s Waste Materials v May, where the landlord failed to give adequate notice of complaints and effectively contributed to the violations. The court stated that “the landlord should not be permitted ‘to treat a man as a tenant, and then treat him as a trespasser’ (Finch v Underwood, 2 Ch Div [1876] 310, 316).” However, in this case, accepting rent without re-entry was not necessarily inconsistent with rejecting the renewal, as the rent was due regardless of whether Jefpaul had met the conditions for renewal. The court emphasized that “in the absence of some prejudice to the tenant, therefore, a waiver of the right to terminate the tenancy will not automatically result in a waiver of the conditions precedent to renewal.”

  • Matter of State (SUNY) v. Public Employment Relations Board, 56 N.Y.2d 339 (1982): Union’s Waiver of Right to Negotiate

    Matter of State (SUNY) v. Public Employment Relations Board, 56 N.Y.2d 339 (1982)

    A union may waive its right to negotiate a mandatory subject of bargaining if it knowingly fails to request negotiations on that subject during contract negotiations.

    Summary

    This case concerns whether the Civil Service Employees Association (CSEA) waived its right to challenge the State University of New York’s (SUNY) “directed absence” policy by failing to demand negotiation on the issue during contract negotiations. The Court of Appeals affirmed the Appellate Division’s decision, finding that the Public Employment Relations Board’s (PERB) determination that CSEA had not waived its right to negotiate the 1977 and 1978 SUNY directives was irrational and unsupported by evidence. The court emphasized that CSEA knew of the policy and its continued enforcement but did not raise it during bargaining.

    Facts

    SUNY issued directives in 1977 and 1978 concerning a “directed absence” policy. CSEA was aware of these directives and that SUNY intended to continue enforcing the policy. In 1976, CSEA unsuccessfully attempted to negotiate an end to SUNY’s “directed absence” policy contained in its 1976 directive. Despite this knowledge, CSEA did not request that the “directed absence” policy be placed on the negotiating table in 1977 or 1978.

    Procedural History

    PERB initially determined that CSEA had waived its right to challenge the 1977 and 1978 SUNY directives. The Appellate Division reversed PERB’s determination. The Court of Appeals affirmed the Appellate Division’s decision, agreeing that PERB’s determination was irrational and unsupported by the evidence.

    Issue(s)

    Whether PERB’s determination that CSEA did not waive its right to challenge the 1977 and 1978 SUNY directives regarding the “directed absence” policy was rational and supported by substantial evidence, given CSEA’s awareness of the policy and failure to request negotiations on the issue.

    Holding

    No, because CSEA knew of the “directed absence” policy and its continued enforcement but failed to request that the issue be put on the bargaining table during the 1977 and 1978 negotiations. Thus PERB’s determination was irrational and unsupported by the evidence.

    Court’s Reasoning

    The court reasoned that CSEA was well aware of the “directed absence” policy outlined in the 1977 and 1978 SUNY directives and knew that SUNY intended to continue enforcing it. Despite this knowledge, CSEA did not attempt to negotiate the policy during the 1977 and 1978 contract negotiations. The court found PERB’s determination that CSEA had not waived its right to negotiate the issue to be irrational in light of these facts. The court emphasized that unions have a responsibility to bring up mandatory subjects of bargaining during negotiations if they wish to preserve their right to negotiate those issues. By failing to do so, they may be deemed to have waived that right. Dissenting, Judge Jasen argued that the scope of the court’s review of PERB’s interpretation is limited. He stated that unless the Board’s determination was affected by an error of law, arbitrary and capricious, or not supported by substantial evidence, the court should not interfere. Quoting Matter of West Ironde quoit Teachers Assn. v Helsby, 35 NY2d 46, 50, the dissent emphasized, “As the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept its construction if not unreasonable”.