Monthly Archives: February 2022

This was originally posted on the SGR Blog.

Was Right to Be Present “Waived” by “Acquiescence”?

Those of us of a certain age remember how the 1995 murder trial of O.J. Simpson was beleaguered and delayed by the many lengthy “sidebar conferences” that were held with defense counsel by Justice Lance Ito. But who knew, as a recent case before the New York Court of Appeals demonstrates, that over time a complicated line of jurisprudence has been developed over the right of the defendant to attend the “sidebar”.

When a defendant is not present at a sidebar conference where the Court actively solicits answers from a prospective juror which relate to issues of bias or hostility, People v Antommarchi requires a new trial in the absence of defendant’s waiver of the right to be present. Defendant’s protest at the trial court is generally not required. The purpose of the Antommarchi rule, as derived from CPL 260.20, is to provide defendant the opportunity to personally assess the juror’s facial expressions and demeanor in order to provide meaningful input on the prospective juror’s retention or exclusion from the jury.

This was originally posted on the SGR Blog.

Would Mississippi Pilot’s Claim Land Here or Take Flight?

A Mississippi pilot sued two Oklahoma corporations in New York for injuries suffered when his plane crashed in Virginia. Needless to say, a motion to dismiss followed.

On April 11, 2014, an airplane flown by Vester Harrison Robison, III, crashed in the vicinity of Louisa, Virginia. Robison filed suit in New York asserting causes of action for negligence and breach of contract against Gibson & Sons, Inc. and Gibson Aviation, LLC, who moved to dismiss, alleging a lack of personal jurisdiction.

A New York court may exercise personal jurisdiction over a non-domiciliary who, in person or through an agent, transacts any business within the state or contracts anywhere to supply goods or services in the state.  To do so, the defendant must have conducted sufficient activities to have transacted business in the state. And the claim must arise from those transactions.

This was originally published on the SGR Blog.

Court of Appeals Decides If Contracts Were Nevertheless Enforceable?

Whether signed before or after marriage, nuptial agreements must be acknowledged in the manner specified in the Domestic Relations Law. The Court of Appeals recently addressed two permutations of the same question: whether non-compliance with the signature acknowledgment requirements of DRL section 236(B)(3) rendered a nuptial agreement irrevocably unenforceable?

Anderson examined whether the acknowledgment must be contemporaneous with the signing of the agreement to comply with section 236(B)(3). The Court concluded that the signature must be acknowledged contemporaneously within a reasonable time of signing. Because in Anderson the wife signed and acknowledged the agreement the month after the wedding, while the husband delayed nearly seven years before acknowledging his signature and did so shortly before he commenced a divorce action, the husband’s acknowledgment was ineffective and the nuptial agreement unenforceable. The only remedy under the circumstances was for the parties to reaffirm the agreement’s terms, which did not occur.

This was originally posted on the SGR Blog.

Were Subsequent Transferees Good Faith Purchasers for Value?

An owner of several pieces of valuable jewelry sells the gems to a purchaser whose check “bounces” for insufficient funds. But the purchaser “hocks’ the jewelry as collateral on a loan which goes into default. And the lender then sells the collateral to a third-party to cover the defaulted loan. As a recent case illustrates, adjudication of claims to the loot requires the Court to navigate around numerous legal propositions.

Regal Jewelry and Gift Shop, LLC sued BLCE, LLC, DBS Diamonds Inc., and Bijan & Co. Inc to recover misappropriated jewelry. BLCE, DBS, and Bijan moved to dismiss the complaint on the grounds of failure to state a cause of action, lack of standing, and defense based on documentary evidence.