New York Law Review

Tag: Waiver

  • Buccini v. Paterno Const. Co., 41 N.Y.2d 996 (1977): Waiver of Arbitration Rights by Litigation Conduct

    Buccini v. Paterno Const. Co., 41 N.Y.2d 996 (1977)

    A party waives their right to demand arbitration when they actively participate in litigation in a manner inconsistent with an intent to arbitrate, but this waiver is limited to the claims actually litigated and does not extend to claims not yet formally introduced into the lawsuit.

    Summary

    This case addresses the issue of waiver of arbitration rights through participation in litigation. The Court of Appeals held that while the defendant waived its right to arbitration for claims related to the years 1973-1976 by actively participating in the lawsuit, this waiver did not extend to claims for the years 1977-1978, which were not formally part of the complaint. Therefore, the defendant could compel arbitration for the latter claims because they promptly demanded it when the plaintiff sought summary judgment on those claims. The court emphasized that the scope of waiver is defined by the claims actively litigated.

    Facts

    The plaintiff and defendant were parties to a contract containing an arbitration clause. A dispute arose concerning amounts owed under the contract. The plaintiff initiated a lawsuit seeking to recover amounts allegedly owed for the years 1973-1976. The defendant actively participated in the litigation. Subsequently, the plaintiff moved for summary judgment, including claims for amounts allegedly owed for the years 1977-1978, which were not initially part of the complaint. The defendant then demanded arbitration for the 1977-1978 claims.

    Procedural History

    The lower courts agreed that the defendant, by participating in the action, waived his right to demand arbitration as to amounts owing for 1973-1976. However, the Appellate Division extended this waiver to include the 1977-1978 claims. The Court of Appeals reversed the Appellate Division’s decision regarding the 1977-1978 claims, holding that the defendant did not waive his right to arbitrate those claims. Special Term initially directed arbitration for the 1977-1978 claims. The Court of Appeals reinstated the Special Term’s order.

    Issue(s)

    Whether a defendant, by participating in litigation regarding certain claims, waives the right to demand arbitration for subsequent claims that were not formally included in the original complaint.

    Holding

    No, because the defendant’s participation in the action only waived his right to demand arbitration as to amounts owing under paragraph 4(b) of the agreement for the years 1973-1976, and the complaint was never formally supplemented to include amounts sought subsequent to 1976. The claims for 1977-1978 were thus subject to arbitration because the defendant promptly demanded it when the plaintiff moved for summary judgment on those claims.

    Court’s Reasoning

    The Court of Appeals agreed with the lower courts that the defendant waived his right to arbitration for the 1973-1976 claims due to his active participation in the lawsuit, citing precedent such as De Sapio v Kohlmeyer and Denihan v Denihan. The court relied on the principle that engaging in litigation is inconsistent with simultaneously asserting a right to arbitration. However, the court distinguished the 1977-1978 claims, emphasizing that the complaint had not been formally amended to include these subsequent amounts. Thus, the defendant’s earlier participation in the lawsuit did not extend to these new claims. Because the defendant promptly demanded arbitration when the plaintiff sought summary judgment on the 1977-1978 claims, the court found that he had not waived his right to arbitrate these claims. The court referenced CPLR 3025(b) and Siegel, New York Practice, § 237 to highlight the requirement for formal supplementation of a complaint to include new claims. The court reasoned that absent a formal amendment, there was no basis to conclude that the defendant waived his contractual right to arbitrate claims not yet properly before the court, stating, “Contrary to the view expressed by the Appellate Division, however, the complaint was never formally supplemented by plaintiff to include amounts sought subsequent to 1976.”

  • Albert J. Schiff Associates, Inc. v. The Travelers Indemnity Company, 50 N.Y.2d 673 (1980): Waiver Does Not Create Insurance Coverage Where None Exists

    Albert J. Schiff Associates, Inc. v. The Travelers Indemnity Company, 50 N.Y.2d 673 (1980)

    An insurer’s disclaimer of liability based on specific policy exclusions does not waive its right to later assert that the claim falls outside the scope of the policy’s insuring clause, because waiver cannot create coverage where none exists under the policy’s terms.

    Summary

    Albert J. Schiff Associates, Inc., an insurance agency, sued its insurers, Lloyd’s, after Lloyd’s disclaimed coverage for a lawsuit filed against Schiff in Massachusetts. The Massachusetts suit alleged that Schiff misappropriated a competitor’s insurance program. Lloyd’s disclaimed based on policy exclusions related to dishonest acts, failure to pay premiums, and personal profit. Schiff argued that the disclaimer waived Lloyd’s right to deny coverage based on the insuring clause. The New York Court of Appeals held that the initial disclaimer did not prevent the insurer from later arguing that the claim fell outside the scope of the policy’s coverage because waiver cannot create coverage where none exists in the first place. The court emphasized the importance of distinguishing between conditions of coverage (which can be waived) and the scope of coverage itself.

    Facts

    Albert J. Schiff Associates, Inc. (Schiff), an insurance agency, purchased professional indemnity insurance policies from Lloyd’s insurers. A competitor, Backman, sued Schiff in Massachusetts, alleging Schiff misappropriated Backman’s “Double Dollar Plan” insurance program after it was revealed to Schiff under a non-disclosure agreement. Backman claimed Schiff willfully usurped this trade secret for its own “Executive Salary Protection Plan.” Lloyd’s disclaimed coverage, citing policy exclusions related to dishonest acts, failure to pay premiums, and personal profit.

    Procedural History

    Schiff sued Lloyd’s in New York after Lloyd’s disclaimed coverage. Special Term initially ordered Lloyd’s to defend Schiff in the Massachusetts action, finding the disclaimer and the complaint didn’t align. The Appellate Division reversed, holding the Massachusetts claim was not within the policy coverage because it did not allege a negligent act, error, or omission in the performance of professional services. Schiff appealed to the New York Court of Appeals.

    Issue(s)

    Whether an insurer’s disclaimer of liability, based on specified exclusions in an insurance policy, waives the insurer’s right to assert that the claim is outside the scope of the insuring clause of the policy.

    Holding

    No, because waiver cannot create insurance coverage where none exists under the policy’s terms. The insurer can still argue the claim falls outside the policy’s scope despite initially disclaiming based on specific exclusions.

    Court’s Reasoning

    The court reasoned that the scope of insurance coverage is determined by both the insuring agreement and the exclusions. These two components define the limits of the insurer’s obligation. Waiver, defined as the voluntary relinquishment of a known right, applies to conditions of the policy, such as timely notice of a loss. It does not, however, extend coverage beyond what was originally bargained for. The court distinguished waiver from equitable estoppel, which may apply if an insurer undertakes the defense of a case without reserving its rights, thereby prejudicing the insured. The court held that the Massachusetts lawsuit, alleging willful misappropriation of a trade secret, fell outside the scope of the professional indemnity policies, which covered liability arising from errors, omissions, or negligent acts in the performance of professional services. The court stated: “An errors and omissions policy is intended to insure a member of a designated calling against liability arising out of the mistakes inherent in the practice of that particular profession or business.” The court rejected the argument that because the allegedly misappropriated plan related to insurance activities, the lawsuit was covered. The court emphasized that coverage requires a direct connection to the performance of professional services and not merely an indirect connection to the insured’s business. The court stated that because the insurers at all times denied liability to indemnify and refused to undertake to defend, the defense of noncoverage remained intact. The court cited Gerka v. Fidelity & Cas. Co., 251 N.Y. 51, 56, clarifying that “where the issue is the existence or nonexistence of coverage (e.g., the insuring clause and exclusions), the doctrine of waiver is simply inapplicable”.

  • Addesso v. Shemtob, 70 N.Y.2d 900 (1987): Waiving Jurisdictional Defense Through Pre-Answer Motion

    Addesso v. Shemtob, 70 N.Y.2d 900 (1987)

    A defendant waives the defense of lack of personal jurisdiction by making a pre-answer motion under CPLR 3211(a) without including the jurisdictional objection, even if the motion is later deemed abandoned due to failure to submit an order.

    Summary

    This case addresses the waiver of a personal jurisdiction defense in New York civil procedure. The defendant, Shemtob, made a pre-answer motion to dismiss but failed to include a challenge to personal jurisdiction. Although he argued the motion was abandoned, the Court of Appeals held that by making any CPLR 3211 motion without raising his jurisdictional defense, the defendant waived that defense, regardless of whether the initial motion was ultimately perfected. The court emphasized preventing defendants from strategically delaying jurisdictional challenges.

    Facts

    The plaintiffs, Addesso, sued the defendant, Shemtob. Shemtob made a pre-answer motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action. However, he did not include a challenge to personal jurisdiction in this motion. Under the rules of the Supreme Court of Kings County, failure to submit an order after a motion constitutes abandonment of the motion. Shemtob asserted that his failure to submit the order meant the motion was a nullity.

    Procedural History

    The plaintiffs moved to strike the affirmative defense of lack of personal jurisdiction. Special Term’s decision regarding the waiver of personal jurisdiction was not explicitly stated. The Appellate Division ruled on the issue. The New York Court of Appeals reversed the Appellate Division’s order, granted the plaintiffs’ motion to strike the affirmative defense, and answered the certified question in the negative.

    Issue(s)

    Whether a defendant waives the affirmative defense of lack of personal jurisdiction by making a motion under CPLR 3211(a) without including the jurisdictional objection, even if the defendant claims the motion was abandoned due to failure to submit an order as per local court rules.

    Holding

    Yes, because CPLR 3211(e) is designed to prevent a defendant from strategically delaying a jurisdictional challenge. By making any motion under 3211 without raising the jurisdictional defense, the defendant waives that defense.

    Court’s Reasoning

    The Court of Appeals reasoned that CPLR 3211(e) aims to prevent defendants from wasting the court’s and the plaintiff’s time by bringing piecemeal motions. The statute requires defendants to consolidate all defenses under CPLR 3211, including jurisdictional ones, into a single motion. The court stated that “[t]he purpose of the waiver provision of CPLR 3211 (subd [e]) is to prevent the defendant from wasting both the “court’s or the plaintiff’s time on any 3211 motion on any ground at all unless on that motion he joins his jurisdictional ground”.” The court rejected the defendant’s argument that the motion was a nullity due to his failure to submit the order, stating that the defendant’s self-serving act of failing to enter the order cannot contravene the legislative purpose of CPLR 3211(e). The court emphasized that the issue, although not raised at Special Term, was properly before the Court of Appeals because it was presented on the record, raised at the Appellate Division, and was conclusive.

  • People v. Dean, 45 N.Y.2d 651 (1978): Waiver of Statutory Speedy Trial Rights by Guilty Plea

    People v. Dean, 45 N.Y.2d 651 (1978)

    A defendant’s guilty plea operates as a waiver of the statutory right to dismissal based on the prosecution’s failure to be ready for trial within the statutorily prescribed time period.

    Summary

    Defendant Dean appealed his conviction, arguing a denial of his right to a speedy trial under both statutory and constitutional grounds. The New York Court of Appeals affirmed the Appellate Division’s order, holding that Dean’s guilty plea waived his statutory right to dismissal based on the People’s delay. Additionally, the court found that the total elapsed time, the defendant’s non-incarceration, and the time attributable to plea bargaining did not demonstrate a constitutional deprivation of the right to a speedy trial. The court emphasized that plea bargaining arrangements can exclude certain periods from speedy trial calculations.

    Facts

    Defendant Dean was indicted, and the People were allegedly not ready for trial within the time prescribed by CPL 30.30. Dean participated in plea bargaining arrangements. Dean later moved for dismissal of the indictment, claiming he was denied his right to a speedy trial. Dean was not incarcerated during the period in question.

    Procedural History

    The defendant was convicted. The defendant appealed, arguing that he was denied his statutory and constitutional rights to a speedy trial. The Appellate Division affirmed the conviction. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the defendant’s guilty plea waived his statutory right to dismissal of the indictment based on the People’s failure to be ready for trial within the time prescribed by CPL 30.30?
    2. Whether the defendant was denied his constitutional right to a speedy trial under CPL 30.20?

    Holding

    1. Yes, because Dean’s plea of guilty operated as a waiver of his statutory right to any dismissal under CPL 30.30, as per People v. Brothers.
    2. No, because the proof, showing a total elapsed time of a few days more than a year, during no part of which was he incarcerated, and seven months of which are attributable to defendant’s participation in the plea bargaining arrangement, falls far short of demonstrating constitutional deprivation.

    Court’s Reasoning

    The Court of Appeals reasoned that Dean’s guilty plea constituted a waiver of his statutory speedy trial rights. Citing People v. Brothers, the court affirmed that a guilty plea forecloses a defendant’s ability to claim a violation of CPL 30.30. Regarding the constitutional claim, the court applied the factors outlined in People v. Taranovich, noting the relatively short delay (approximately one year), the defendant’s non-incarcerated status, and the significant portion of the delay attributable to Dean’s own plea bargaining efforts. The court found that these factors, taken together, did not amount to a constitutional violation.

    The court highlighted the significance of plea bargaining in assessing speedy trial claims, explicitly stating that the period of time related to such arrangements could be excluded when calculating the People’s delay. This acknowledges the practical reality that plea negotiations often require time and resources, and that defendants who actively participate in such negotiations should not be able to later claim that the resulting delays violated their speedy trial rights.

    The decision underscores the importance of defendants asserting their speedy trial rights before entering a guilty plea. By pleading guilty, a defendant forfeits the opportunity to challenge the prosecution’s readiness for trial based on statutory grounds. Furthermore, this case illustrates that the constitutional right to a speedy trial is not simply a matter of elapsed time but requires a careful balancing of various factors, including the reasons for the delay and its impact on the defendant.

  • Abel-Bey v. Melrod, 42 N.Y.2d 863 (1977): Enforceability of Arbitration Agreements by Shareholders

    Abel-Bey v. Melrod, 42 N.Y.2d 863 (1977)

    A party waives the right to challenge the validity of an arbitration agreement if it fails to make a timely application for a stay of arbitration.

    Summary

    In this case, the New York Court of Appeals addressed whether a corporation could challenge the enforceability of an arbitration agreement after failing to timely apply for a stay of arbitration. The court held that because the corporation did not timely challenge the arbitration demand, it waived its right to argue that it was not bound by the agreement or that the claims fell outside the scope of the arbitration clause. The ruling emphasizes the importance of timely challenging arbitration demands and the broad scope of arbitration agreements when all shareholders agree.

    Facts

    Dr. Abel-Bey and three other individuals, who were all the shareholders of a corporation, entered into a stockholders’ agreement. The agreement restricted the disposition of their shares, addressed the election of directors and management of the corporation, and determined the compensation for each shareholder as corporate employees. Although the agreement stated that the corporation was a party, it was never executed on the corporation’s behalf. The agreement included a broad arbitration clause: “All disputes arising in connection with this agreement shall be finally settled by arbitration”. Differences arose between Dr. Abel-Bey and the other shareholders concerning the corporation’s failure to enter into an employment contract with him and regarding compensation and other payments made to the other shareholders. Dr. Abel-Bey served a demand for arbitration on the other three shareholders and the corporation.

    Procedural History

    The petitioner (presumably one of the other shareholders), individually, sought a stay of arbitration, arguing that the corporation was not a party to the agreement and that the claims were outside the scope of the arbitration agreement. The Supreme Court denied the stay for one claim but granted it for the other two. The Appellate Division modified this decision by denying the stay for all three claims. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the corporation, by failing to timely apply for a stay of arbitration, waived its right to challenge the validity of the arbitration agreement.
    2. Whether the three claims raised by Dr. Abel-Bey fall within the scope of the arbitration agreement.
    3. Whether any public policy considerations preclude the submission of these claims to arbitration.

    Holding

    1. Yes, because the corporation failed to raise the question of whether it was bound by the arbitration agreement in a timely application for a stay as required by CPLR 7503(c).
    2. Yes, because the court agreed with the Appellate Division that all three claims fell within the scope of the arbitration agreement.
    3. No, because no considerations of public policy preclude their submission to arbitration.

    Court’s Reasoning

    The Court of Appeals reasoned that the threshold question of whether the corporation was bound by the arbitration agreement was waived because the corporation did not raise it in a timely application for a stay of arbitration, citing CPLR 7503(c). The statute requires a party objecting to arbitration to move for a stay within twenty days of service of the notice of intention to arbitrate. Failure to do so constitutes a waiver of the right to object. The court emphasized the importance of adhering to procedural rules governing arbitration, particularly the requirement to timely challenge the validity or scope of an arbitration agreement. Regarding the scope of the agreement, the court deferred to the Appellate Division’s finding that all three claims fell within the scope and found no public policy reason to prevent arbitration. The court did not provide an in-depth analysis of the specific claims but instead focused on the procedural aspect of timely challenging arbitration demands.

  • In re Estate of Wilson, 50 N.Y.2d 59 (1980): Effect of Reconciliation on Separation Agreement Waiver of Spousal Rights

    In re Estate of Wilson, 50 N.Y.2d 59 (1980)

    A separation agreement, including a waiver of spousal rights, is void ab initio if the parties are not actually separated at the time of execution, and the agreement is considered entirely revoked if the parties reconcile, unless there is clear evidence of a contrary intention to maintain specific provisions.

    Summary

    This case concerns a widow’s attempt to elect against her husband’s will, despite a waiver in a separation agreement. The court addressed whether the waiver was valid, considering the agreement’s initial validity (given that the couple may not have been separated when it was signed) and a potential reconciliation. The Court of Appeals held that the separation agreement was invalid from its inception because the couple was not separated when it was executed. Moreover, it found that even if the agreement had been valid initially, the subsequent reconciliation would have revoked the entire agreement, including the waiver, as the agreement’s purpose was to govern the affairs of separated spouses.

    Facts

    Robert and Earlene Wilson signed a separation agreement in 1966, which included a waiver of each spouse’s rights against the other’s estate. The agreement stated they were already separated and would live apart. Upon Robert’s death in 1975, Earlene filed a notice of election to take against his will. A devisee, Osceola Turner, challenged this, citing the waiver. Earlene argued the agreement was ineffective because she and Robert had reconciled in 1967 and lived together until his death, and also because they were not separated when the agreement was signed.

    Procedural History

    The Surrogate’s Court focused solely on the reconciliation claim, rejecting it based on the court’s assessment of witness credibility. The court failed to address the argument that the separation agreement was invalid from the start because the parties were living together. The Appellate Division reversed, finding that the Wilsons were not separated when the agreement was made, rendering it void ab initio. The New York Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    1. Whether a separation agreement, including a waiver of spousal rights, is void ab initio if the parties are not actually separated at the time of its execution.

    2. Whether a valid separation agreement, including a waiver of spousal rights, is revoked by a subsequent reconciliation of the parties.

    3. Whether a waiver of spousal rights within a separation agreement is severable and enforceable even if the rest of the agreement is invalid.

    Holding

    1. Yes, because a separation agreement is intended to govern the affairs of separated spouses; if they are not separated when it’s made, the agreement is invalid from the beginning.

    2. Yes, because reconciliation implies an intent to void the entire agreement, including the waiver, absent evidence of a contrary intention.

    3. No, because the waiver is not independently enforceable when the entire agreement is brought to an end, either due to initial invalidity or subsequent reconciliation.

    Court’s Reasoning

    The Court of Appeals agreed with the Appellate Division’s finding that the Wilsons were not separated when they signed the agreement. The court emphasized that the agreement’s boilerplate recital of an ongoing separation had meager support in the record, while there was abundant evidence they were living together. “Most relevant to the circumstances surrounding the genesis of the agreement in the present case is the obvious fact that it, and all its provisions, were intended to govern as between separated spouses.”

    Regarding severability, the court stated that whether provisions are severable depends on the parties’ intent and the circumstances. The court found no evidence that the parties intended the waiver to survive the invalidity of the separation agreement. The court noted that, “Once the partners to the union renounce their incipient state of separation in favor of maintaining their coupled status, absent any indication to the contrary, it is to be assumed that, writing on a clean slate, they intended that all vestiges of the agreement that was to serve to memorialize their separation also fall”. The court distinguished cases where waivers were upheld despite the agreement’s invalidity, noting that those cases involved parties who continued to live apart.

    Judge Gabrielli, in his concurrence, emphasized that the revocation of the agreement upon reconciliation is based on the presumed intent of the parties and should not apply when a contrary intent is clear. He also suggested that in some cases, the court might condition a widow’s election on the return of property transferred under the agreement, depending on the equities and the rights of third parties.

  • People v. Michael, 48 N.Y.2d 1 (1979): Double Jeopardy Must Be Raised at Trial to Be Preserved for Appeal

    48 N.Y.2d 1 (1979)

    A defendant’s failure to raise a double jeopardy claim at trial constitutes a waiver of that defense for appellate review unless the error affects the organization of the court or the mode of proceedings prescribed by law.

    Summary

    The New York Court of Appeals held that a defendant’s failure to raise a double jeopardy defense before or during the second trial waived the right to assert it on appeal. The Court reasoned that the double jeopardy defense, while constitutionally significant, is a personal right that must be timely asserted. The majority distinguished this case from errors affecting the court’s organization or mode of proceedings, which can be raised for the first time on appeal. The dissent argued that established precedent required preservation of the double jeopardy defense at trial and that the majority’s decision undermined the state’s interest in efficient criminal procedure.

    Facts

    The defendant was initially tried for a crime, but the outcome of that trial is not specified in this excerpt. The defendant was then retried for the same crime. Before or during the second trial, the defendant did not raise a defense of double jeopardy, arguing that being tried again for the same offense violated his constitutional rights.

    Procedural History

    The Appellate Division’s order was appealed to the New York Court of Appeals. The specific ruling of the Appellate Division is not detailed in this excerpt. The Court of Appeals considered whether the defendant’s failure to raise the double jeopardy defense at trial precluded him from raising it on appeal.

    Issue(s)

    Whether a defendant’s failure to assert a double jeopardy defense prior to or during trial waives the right to raise that defense on appeal.

    Holding

    No, because the constitutional immunity from double jeopardy is a personal right which if not timely interposed at trial may be waived.

    Court’s Reasoning

    The Court of Appeals stated that the “constitutional immunity from double jeopardy is a personal right which if not timely interposed at trial may be waived.” The court relied on prior case law, including People v. La Ruffa, which reaffirmed the principle that a double jeopardy defense can be waived if not raised at trial. The court distinguished the double jeopardy claim from errors affecting the organization of the court or the mode of proceedings, such as trial by a jury of fewer than 12 members or prosecution by information for an infamous crime when a Grand Jury indictment is constitutionally required. The court reasoned that permitting a defendant to raise a double jeopardy claim for the first time on appeal would undermine the State’s interest in enforcing its criminal law efficiently. As the dissent stated, “[a] defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal.” The court also distinguished Menna v. New York, noting that while a guilty plea does not automatically waive a double jeopardy claim that was unsuccessfully raised before the plea, it does not preclude a finding that the defendant waived the claim by failing to raise it timely and preserve it for appellate review.

  • People v. Iannone, 45 N.Y.2d 589 (1978): Sufficiency of Indictment and Waiver of Objections

    People v. Iannone, 45 N.Y.2d 589 (1978)

    A defendant waives the right to challenge the factual sufficiency of an indictment if the objection is not timely raised, provided the indictment effectively charges a crime and the defendant isn’t deprived of the right to be informed of the charges.

    Summary

    Defendants Iannone and Corozzo appealed their convictions for criminal usury, arguing the indictments against them were insufficient for failing to state facts constituting a crime. The Court of Appeals affirmed the convictions, holding that the defendants waived their right to challenge the indictments’ factual sufficiency because they failed to raise timely objections. The court clarified that while indictment by a grand jury is a fundamental right, defects in factual allegations, unlike the failure to charge all elements of a crime, can be waived if not promptly challenged.

    Facts

    Iannone was indicted for conspiracy and criminal usury, pleading guilty to one count of criminal usury. Corozzo was indicted for conspiracy, criminal usury, and grand larceny, and was convicted of criminal usury after a jury trial. Both indictments charged that the defendants knowingly charged, took, and received money as interest on a loan at a rate exceeding 25% per annum, without legal authorization. Iannone challenged the indictment’s sufficiency for the first time at sentencing, and Corozzo raised the issue for the first time on appeal to the Court of Appeals.

    Procedural History

    Iannone pleaded guilty to one count of criminal usury; his motion to dismiss the indictment at sentencing was denied, and the Appellate Division affirmed his conviction. Corozzo was convicted of criminal usury after a jury trial, and the Appellate Division affirmed his conviction. Both defendants appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether a defendant waives the right to challenge the factual sufficiency of an indictment by failing to raise a timely objection in the trial court.
    2. Whether an insufficiency in the factual allegations of an indictment constitutes a jurisdictional defect that cannot be waived.

    Holding

    1. Yes, because a defendant must timely object to preserve the issue for appellate review.
    2. No, because an indictment is only jurisdictionally defective if it fails to charge every material element of the crime, not merely because of insufficient factual allegations.

    Court’s Reasoning

    The court emphasized the evolution of indictment requirements, noting a shift from strict formalism to a more practical approach focused on providing defendants with adequate notice of the charges. While indictment by a Grand Jury is a fundamental right, the specific contents of the indictment are subject to waiver. The court stated that “the basic essential function of an indictment qua document is simply to notify the defendant of the crime of which he stands indicted.” The court noted that CPL 200.50 requires an indictment to contain a “plain and concise factual statement… with sufficient precision as to clearly apprise the defendant… of the conduct which is the subject of the accusation”.

    The Court distinguished between defects that are jurisdictional and those that are not. “In essence, an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime…or if it fails to allege that a defendant committed acts constituting every material element of the crime charged.” It held that “[i]nsufficiency in the factual allegations alone, as opposed to a failure to allege every material element of the crime, does not constitute a nonwaivable jurisdictional defect”.

    The court cautioned that an overzealous prosecutor shouldn’t deprive a defendant of the right to be informed of the charges, especially where the indictment provides little information. In such cases, the court must ensure the defendant’s rights to a bill of particulars and effective discovery are protected. Here, the defendants didn’t claim they were unaware of the charges or prejudiced, only that the indictments were insufficient. Because the indictments properly charged criminal usury and the defendants failed to timely object, they waived their right to challenge the factual sufficiency on appeal.

  • Hadden v. Consolidated Edison Co., 34 N.Y.2d 88 (1974): Waiver of Right to Discharge Based on Fraudulent Misrepresentation

    Hadden v. Consolidated Edison Co., 34 N.Y.2d 88 (1974)

    An employer’s waiver of its right to discharge an employee before retirement is not binding if induced by the employee’s fraudulent misrepresentation or concealment of material facts regarding misconduct.

    Summary

    This case addresses whether Consolidated Edison (Con Edison) validly waived its right to discharge Hadden, a former vice-president, before his retirement. Hadden sought to recover damages and retirement benefits, while Con Edison counterclaimed, alleging Hadden received bribes and secret gifts from construction firms doing business with Con Edison. The court held that Hadden’s misrepresentation and concealment of these bribes, which constituted grave misconduct, vitiated Con Edison’s waiver of its right to discharge him. This decision highlights that a waiver obtained through fraud is ineffective, reinforcing the principle that an employee owes a duty of utmost good faith to their employer.

    Facts

    Hadden, a vice-president at Con Edison, was responsible for construction projects. During his tenure, he received $16,000 in bribes from Fried, connected with construction companies, and a secret gift of $14,750 plus approximately $1,000 in expenses from Benesch, another construction company president. When questioned about these dealings, Hadden falsely stated that he had done nothing wrong and concealed the payments and gifts. Based on Hadden’s misrepresentations, Con Edison initially forebore from discharging him, but later rescinded his pension rights upon discovering the truth.

    Procedural History

    Hadden sued Con Edison to recover damages and secure retirement benefits. Con Edison counterclaimed for a declaration that Hadden’s pension rights were properly rescinded and for disgorgement of the bribes and gifts. The initial summary judgment was appealed, with the Court of Appeals remanding for a determination of whether Con Edison’s waiver was induced by Hadden’s material misrepresentation. Trial Term dismissed Hadden’s complaint and upheld Con Edison’s rescission of pension rights. The Appellate Division reversed, holding that there was no specific agreement not to discharge Hadden. The Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether Con Edison’s waiver of its right to discharge Hadden before retirement was knowingly induced by Hadden through material misrepresentation, thereby invalidating the waiver.

    Holding

    No, because Hadden’s misrepresentation and concealment of material facts, specifically his acceptance of bribes and gifts, constituted fraud, which vitiated Con Edison’s waiver of its right to discharge him.

    Court’s Reasoning

    The court reasoned that while an employer can waive its right to discharge an employee for misconduct, such a waiver is ineffective if induced by fraud. Hadden, as an officer of Con Edison, had a duty to exercise utmost good faith. His concealment of the bribes and gifts, coupled with his false assertion that he had done nothing wrong, constituted a fraudulent misrepresentation that induced Con Edison to forbear from discharging him. The court stated that “fraud vitiates everything which it touches.” The court emphasized that it was not necessary for there to be a discrete “agreement not to discharge” for rescission to be permitted. The intentional relinquishment of a known right can be nullified by fraudulent inducement. The court found that Hadden’s actions were “calculated to induce a false belief and was the predicate for reliance,” making the distinction between concealment and affirmative misrepresentation legally insignificant. The court cited precedents like Jones Co. v Burke, stating that Hadden’s failure to disclose material facts was a breach of his duty to his employer. The court concluded that the inaction by Con Edison due to Hadden’s purposeful concealment was as actionable as fraud inducing positive action, thus justifying the rescission of Hadden’s pension rights.

  • People v. Dackman, 42 N.Y.2d 1067 (1977): Preserving Objections Regarding Witness Privilege Against Self-Incrimination

    People v. Dackman, 42 N.Y.2d 1067 (1977)

    A defendant’s failure to object to a trial court’s recognition of a witness’s claim of privilege against self-incrimination forfeits the right to appellate review of that specific error.

    Summary

    Dackman was convicted based on a drugstore robbery in which a participant, who had already pleaded guilty, was subpoenaed by the defense. This witness invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The trial court did not allow the defendant to call the witness to the stand. The defendant did not object to the court’s decision regarding the witness’s privilege. On appeal, the defendant argued the witness should not have been allowed to invoke the privilege because he had already pleaded guilty. The Court of Appeals affirmed the conviction, holding that the defendant’s failure to object at trial precluded appellate review of the claim that the witness’s Fifth Amendment privilege was improperly recognized.

    Facts

    The defendant was charged with a crime based on his participation in a drugstore robbery.
    A participant in the robbery pleaded guilty.
    The defendant subpoenaed this participant as a witness, hoping for exculpatory testimony.
    The witness, when examined outside the presence of the jury, invoked his Fifth Amendment privilege against self-incrimination and refused to testify.
    The trial court ruled that the defendant could not call the witness to the stand, and defense counsel did not object.
    The trial court then denied the defense’s request to inform the jury about the witness’s guilty plea and his reason for not appearing, a decision the defendant did not appeal.

    Procedural History

    The trial court convicted the defendant.
    The Appellate Division affirmed the conviction.
    The case was appealed to the New York Court of Appeals.

    Issue(s)

    Whether a defendant, by failing to object to the trial court’s recognition of a witness’s claim of privilege against self-incrimination, preserves the alleged error for appellate review.

    Holding

    No, because the defendant failed to object to the trial court’s recognition of the claim of privilege or otherwise raise any question as to the witness’s right to assert such privilege, the error, if any, was not preserved for appellate review.

    Court’s Reasoning

    The Court of Appeals emphasized that the defendant did not object to the trial court’s recognition of the witness’s Fifth Amendment claim. Because of this failure to object, the Court held that the issue of whether the witness was improperly allowed to invoke the privilege was not preserved for appellate review.

    The Court acknowledged a potentially significant issue concerning the prosecution’s failure to grant immunity to the witness, which could have deprived the defendant of exculpatory testimony and potentially violated due process and the right to a fair trial (citing People v. Sapia, 41 NY2d 160). However, the Court clarified that this issue was neither preserved nor presented on appeal.

    The Court stated, “In view of the failure of defendant to object to the trial court’s recognition of the claim of privilege or otherwise then to raise any question as to the witness’ right to assert such privilege, the error, if any, was not preserved for appellate review.”