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This issue of the liibulletin-ny reports on six recent
decisions of the New York Court of Appeals.

The cases reported in this issue concern:

* Status of a vehicle lease under the Magnuson-Moss Warranty Act,
* Treatment of the mistaken receipt by a criminal trial jury of
a non-testifying witness's statement,
* The need to show "dangerousness" when retaining an insanity
acquitee in a non-secure mental health facility,
* When an "error in judgment" jury charge is appropriate in a
medical malpractice case,
* Duty of a hospital's staff to protect patients against
non-medical harm, and
* Trial courts' ability to sentence to life-imprisonment-without-
parole where a defendant pleads guilty to first-degree murder.

Note: All summaries are preceded by a bar of equal signs (===).
This allows use of the find or search function on a word
processor or mail reader to move quickly from one summary to
the next.

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at this bulletin's end. Feel free redistribute this issue.

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CONTRACTS - LAW OF COMMERCIAL TRANSACTIONS - UNIFORM COMMERCIAL
CODE - VEHICLE LEASES - APPLICATION OF WARRANTIES - MAGNUSON-MOSS
WARRANTY ACT

DiCintio v. DaimlerChrysler Corp., 2002 N.Y. Int. 0009 (Feb. 13,
2002).

< http://www.law.cornell.edu/ny/ctap/I02_0009.htm >

ISSUE & DISPOSITION

Issue(s)

Whether a vehicle lease constitutes a "sale" within the ambit of
the Magnuson-Moss Warranty Act thereby empowering the lessee to
sue the lessor for a failure to honor obligations under a warranty
agreement to repair the vehicle.

Disposition

No. The Act was adopted in the context of the U.C.C. and the
common law, and passing of title, which is an essential element of
a sale, has never been a characteristic of a lease under either
structure.

SUMMARY

Plaintiff leased a vehicle, manufactured by DaimlerChrysler
Corporation, from Adzam Auto Sales Inc. (Adzam). The vehicle was
covered by certain warranties that were available to both lessees
and purchasers. Soon after Plaintiff took possession of the
vehicle, the vehicle began to malfunction. On six or seven
occasions, Plaintiff brought the vehicle to authorized dealers who
failed to successfully repair the vehicle. Plaintiff notified
Adzam that he wanted either to void the lease or to be provided
with a new vehicle. After Adzam refused, Plaintiff notified
Defendant DaimlerChrysler that he was revoking the lease.
Defendant refused to accept revocation, and Plaintiff initiated
the present action. Plaintiff alleged (1) breach of a written
warranty by DaimlerChrysler under the Magnuson-Moss Warranty Act,
15 U.S.C. § 2301-2312, (the "Warranty Act"), (2) breach of implied
warranties by both Adzam and DaimlerChrysler under the Warranty
Act, and (3) "improper delivery" under the Uniform Commercial Code
(the "U.C.C.") The trial court dismissed all but the first cause
of action. The Appellate Division affirmed the trial court's
holding on the first claim and reinstated the claim for breach of
implied warranty. The Court of Appeals reversed, holding that the
Warranty Act does not extend to Plaintiff because a lease fails to
qualify as a "sale."

The initial step in the Court's process of statutory construction
was the observation that only "consumers" fit under the ambit of
the Magnuson-Moss Warranty Act, and that the definition of a
"consumer" required courts to determine whether a "sale" had
occurred. The Court maintained that although the Warranty Act
does not define the term "sale," neither the U.C.C. nor the
common law regards a lease to constitute a passage of title -
which is a material element of the definition of a "sale" under
the U.C.C. The Court then compared the Warranty Act with other
consumer protection statutes. The Court pointed to the Truth in
Lending Act, which explicitly includes and defines a "consumer
lease," to show that Congress is capable of extending similar
protections to both buyers and lessees if it so chooses.
Additionally, the Court noted that the N.Y. legislature had
specifically amended the New Car Lemon Law to include lessees
in the definition of a "consumer," seemingly in the belief that
the pre-amendment definition, which was analogous to the
definition of a "consumer" under the Warranty Act, would not
have included auto lessees. The Court concluded that since
Plaintiff never acquired title to the vehicle, the lease did
not rise to the level of a sale, and, thus, Plaintiff was not
a consumer who could call upon the protections of the Warranty
Act. The Court dismissed all three causes of action.

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CRIMINAL PROCEDURE - EVIDENCE - HARMLESS ERROR DOCTRINE - MISTRIAL
MOTION - PREJUDICIAL EFFECT - CURATIVE INSTRUCTIONS

People v. Smith, 2002 N.Y. Int. 0010 (Feb. 13, 2002).

< http://www.law.cornell.edu/ny/ctap/I02_0010.htm >

ISSUE & DISPOSITION

Issue(s)

Whether a trial court must grant a mistrial motion when the jury
receives, in error, the statement of a non-testifying witness.

Disposition

No. The harmless error doctrine applies if the remaining evidence
is overwhelming and the court has issued a curative instruction to
the jury.

SUMMARY

In written and videotaped confessions, Defendant admitted to
intentionally shooting into a car in Syracuse on August 30, 1998,
killing the driver and injuring a passenger. At trial, Defendant
sought to suppress his confession and testified that he had been
elsewhere on the night of the incident and that his confession had
been made under duress. The trial court denied the Defendant's
request to suppress his confession. The jury also heard testimony
from a detective who overheard Defendant confess to the shooting
while talking to his mother, and from an eyewitness to the crime
who visually identified Defendant as the assailant. Additionally,
the statement of a non-testifying witness, which contradicted
Defendant's trial testimony, was accidentally submitted to the
jury with the exhibits. Defendant moved for a mistrial, arguing
that the jury's accidental receipt of the non-testifying witness's
statement compromised Defendant's right to a fair trial. The trial
court denied the motion but instructed the jury to disregard the
statement submitted in error. The Appellate Division reversed,
holding that Defendant's constitutional right to cross-examine the
non-testifying witness had been infringed.

The Court of Appeals reversed. The Court reasoned that even
assuming the error was of constitutional proportion, the harmless
error doctrine applied because there was "no reasonable
possibility that the error might have contributed to the
defendant's conviction." Relying upon the Supreme Court's decision
in Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986), the Court
stated that a criminal defendant is entitled only "to a fair trial,
not a perfect one." In discussing the harmless error doctrine, the
Court noted that in a criminal trial, where the evidence on the
record is otherwise overwhelming and the judge gives a curative
instruction to the jury, even a constitutional error is held
harmless in answering the factual question of a defendant's
culpability. Thus, based on the abundance of conclusive evidence
indicating Defendant's guilt and the trial judge's curative
instruction to the jury, the Court affirmed the trial court's
denial of Defendant's motion for a mistrial.

================================================================
CONSTITUTIONAL LAW - DUE PROCESS - INSANITY ACQUITEE - RETENTION -
PSYCHIATRIC FACILITY - MENTAL ILLNESS

David B. (Anon.) v. Comm'r of the New York State Office of Mental
Health, 2002 N.Y. Int. 0011 (Feb. 13, 2002).

< http://www.law.cornell.edu/ny/ctap/I02_0011.htm >

ISSUE & DISPOSITION

Issue(s)

Whether N.Y. Crim. Proc. Law § 330.20(1)(d) requires a showing of
"dangerousness" for the continued retention of an insanity
acquittee in a non-secure mental health facility.

Disposition

Yes. Despite the absence of the word "dangerous" in §
330.20(1)(d), the statute implicitly requires a showing of a
constitutionally-mandated minimum level of dangerousness; it does
not, however, require a showing of violence.

SUMMARY

This decision consolidates two cases brought on appeal after
judicial orders were issued requiring continued retention of
Appellants, insanity acquittees, at mental health facilities. In
the first case, Appellant David B. was indicted for the 1970
murder of his brother but was found not guilty by reason of
insanity, committed to the custody of the Commissioner of Mental
Health, and sent to a secure psychiatric facility. In 1977, he was
transferred to a non-secure facility. During several subsequent
retention hearings, held pursuant to N.Y. Crim. Proc. Law §
330.20, Appellant was found to be "mentally ill," requiring
continued retention. During an appeal of his most recent retention
hearing, the trial court denied the introduction of testimony
aimed at showing that Appellant was not dangerous on the grounds
that N.Y. Crim. Proc. Law § 330.20(1)(d) only required a showing
that Appellant was mentally ill. The Appellate Division affirmed.

In the second case, Appellant Richard S. was similarly found not
guilty by reason of mental disease or defect for the murder of a
sexual partner, and, in 1980, was committed to the custody of the
Commissioner of Mental Health and sent to a secure psychiatric
facility. In 1994, Appellant was transferred to a non-secure
facility, but returned to the secure facility in 1998 under an
emergency order following several incidents of dangerous behavior.
The Commissioner of Mental Health petitioned the Supreme Court for
an order requiring permanent retention at the secure facility.
After a hearing, the Supreme Court found that Appellant did not
suffer from a "dangerous mental disorder," as required for
retention at a secure facility, but did suffer from "a mental
illness." Accordingly, the Supreme Court ordered Appellant's
retention at a non-secure facility. The Appellate Division
affirmed. Both Appellants appealed, arguing that "continued
retention in a non-secure facility based solely upon a finding of
'mental illness' without a concomitant finding of dangerousness
violate[d] their right to substantive due process of law."

The Court of Appeals reversed. The Court first provided a review
of N.Y. Crim. Proc. Law § 330.20, which requires that a person
with a "dangerous mental disorder" be retained in a secure
facility pursuant to § 330.20(1)(c), while a person who is only
"mentally ill" must be retained in a non-secure facility pursuant
to § 330.20(1)(d). In resolving both cases, the Court of Appeals
found that § 330.20(1)(d), which provides the criteria necessary
for retaining an insanity acquittee at a non-secure facility,
implicitly requires a showing of a constitutionally-mandated
minimum level of dangerousness. The Court reasoned that despite
the absence of the word "dangerous" in the statute, the three
requirements for a finding of "mentally ill" listed in §
330.20(1)(d) subsumed a constitutionally-required minimum
dangerous element. Citing Jones v. United States, 463 U.S. 354
(1983); Foucha v. Louisiana, 504 U.S. 71 (1992).

The Court elucidated the factors for a finding of "dangerousness"
in the context of § 330.20(1)(d). The Court stated that the
criteria used to judge a "dangerous" finding in the context of §
330.20(1)(c) are helpful in determining the nature of the lesser §
330.20(1)(d) dangerous finding. The Court noted that although a
finding of dangerousness may be predicated on violence, it need
not be. In addition to violence, the Court suggested consideration
of other factors, including many of the same factors the Court in
Matter of George L., 85 N.Y.2d 295 (N.Y. 1995) and Matter of
Francis S., 87 N.Y.2d 554 (N.Y. 1995) used to determine when
retention at a secure facility was appropriate. The Court pointed
out, however, that the factors used to determine dangerousness for
purposes of justifying retention in a non-secure facility need not
be as pronounced as those used to determine dangerousness for
purposes of authorizing retention in a secure facility.

Based on its finding that N.Y. Crim. Proc. Law § 330.20 requires a
showing of a minimal level dangerousness in order to retain a
insanity acquittee at a non-secure facility, the Court reversed
and remanded both cases. The Court noted the Appellate Division's
errors in citing to § 330.20(1)(c)(i) as the basis for retention
and in failing to make a factual finding on the issue of
dangerousness.

================================================================
TORTS - MEDICAL MALPRACTICE - JURY INSTRUCTION - "ERROR IN
JUDGMENT" DOCTRINE - HARMLESS ERROR - STANDARD OF CARE

Nestorowich v. Ricotta, 2002 N.Y. Int. 0013 (Feb. 14, 2002).

< http://www.law.cornell.edu/ny/ctap/I02_0013.htm >

ISSUE & DISPOSITION

Issue(s)

"Whether, in a medical malpractice action arising out of a
surgical procedure, a trial court may properly give the jury an
"error in judgment" charge absent a showing that the doctor has
chosen one of two or more medically acceptable alternative
treatments or techniques."

Disposition

No. An "error in judgment" charge is appropriate only where
evidence is presented that the doctor made a choice between two or
more medically acceptable alternative treatments.

SUMMARY

Decedent Plaintiff had a decade-long battle with renal cell
carcinoma. In 1994, after Decedent's primary physician conducted
several unsuccessful operations, Decedent was referred to
Defendant, Dr. Ricotta, for surgery to remove a large tumor from
Decedent's adrenal gland. Prior to the operation, Defendant met
Decedent and disclosed the risks of the procedure, following which
Decedent signed a consent form. During the surgery Defendant
inadvertently tied off, or ligated, Decedent's renal artery
thereby preventing blood flow to Decedent's then only remaining
kidney. A follow-up operation restored blood flow, but the
ligation had caused irreparable harm to the kidney. In 1995,
Decedent and his spouse brought suit. Decedent died the following
year of causes unrelated to the surgery. Decedent's spouse, as
sole Plaintiff, then argued that Defendant negligently ligated
Decedent's renal artery, thereby causing Decedent's injury. The
Supreme Court gave an "error in judgment" charge to jury, and the
jury returned a verdict absolving Defendant of any liability.
Plaintiff filed a motion to set aside the verdict, arguing that
the charge to the jury was given in error. The Supreme Court
denied the motion and dismissed the complaint. Plaintiff appealed,
and the Appellate Division affirmed, finding no error in the lower
court's charge and that if any error did exist, it was harmless.

The Court of Appeals found that the trial court's "error in
judgment" charge was erroneous but affirmed the Appellate
Division's finding that the error was harmless. The Court
explained that an "error in judgment" charge instructs the jury
not to hold a doctor liable for a "mere error of judgment,
provided he does what he thinks is best after careful
examination." The Court noted that the charge is appropriate only
where parties present evidence that the physician made a choice
between or among medically acceptable alternatives or diagnoses.
The Court reasoned that Plaintiff never asserted that Defendant's
mistake stemmed from such a choice between alternative treatments;
rather, she alleged that Defendant's mistake was purely
mechanical. Thus, the evidence presented was limited to the
separate issue of whether Defendant deviated from the standard of
care. Accordingly, the Court found that the "error in judgment"
charge did not affect the jury's ultimate decision, which
correctly turned on whether Defendant deviated from acceptable
medical practices.

================================================================
TORTS & PERSONAL INJURY - NEGLIGENCE - VICARIOUS LIABILITY -
SEXUAL ASSAULT - HOSPITALS - PHYSICIANS - RESPONDEAT SUPERIOR

N.X. v. Cabrini Med. Ctr., 2002 N.Y. Int. 0015 (Feb. 14, 2002).

< http://www.law.cornell.edu/ny/ctap/I02_0015.htm >

ISSUE & DISPOSITION

Issue(s)

1. Whether a hospital may be found vicariously liable under the
doctrine of respondeat superior when a doctor, acting outside of
his assigned duties, sexually assaults a patient.

2. Whether a hospital may be found negligent in its duty to
protect patients when, despite readily perceivable risks of harm,
its staff fails to prevent the harm.

Disposition

1. No. A sexual assault is neither in furtherance of a hospital's
business of health care nor within the scope of a doctor's
employment, so a hospital cannot be vicariously liable for sexual
assault under respondeat superior.

2. Yes. Where a hospital's staff ignores or fails to notice
readily perceivable risks of harm to patients, the hospital may be
found negligent in its duty to protect the patients.

SUMMARY

Plaintiff underwent surgery at Defendant Cabrini Medical Center's
facilities. Plaintiff claimed that a surgical resident of the
hospital, not assigned to her care, sexually assaulted her
following the surgery while she was still under the effects of
anesthesia. The alleged assault occurred while three nurses were
observing another patient in an adjacent bed in a small recovery
room. The nurses claimed that they noticed the unfamiliar resident
enter the room but did not notice his interaction with Plaintiff.
After the assault, Plaintiff complained to the nurses, and the
doctor later admitted "examining" Plaintiff without hospital-
mandated observation by a female witness. The hospital fired the
resident after an internal investigation. Plaintiff then sued the
hospital claiming negligence and vicarious liability. The trial
court denied Defendant's motion for summary judgment on the claims
of vicarious liability and negligence. The Appellate Division
reversed, finding no vicarious liability because the assault was
outside the scope of the doctor's employment and no negligence
because the assault was neither reasonably foreseeable nor
preventable. The Court of Appeals affirmed as to the issue of
vicarious liability but reversed as to the issue of negligence.

The Court of Appeals affirmed the dismissal of Appellant's
vicarious liability claim, finding that respondeat superior
applies liability to employers only when their employee performs a
tortious act "in furtherance of the employer's business," citing
Riviello v. Waldron, 47 N.Y.2d 297, 302 (N.Y. 1979). The Court
found that the sexual assault was outside the scope of employment
because the doctor perpetrated it for purely "personal motives,"
and, therefore, the assault was not committed "in furtherance of
the employer's business." See Judith M. v. Sisters of Charity
Hosp., 93 N.Y.2d 932, 933 (1999). The Court reversed and remanded
the Appellant's negligence claim. First, the Court stated that a
hospital's "sliding scale of duty" to protect patients is limited
to reasonably foreseeable risks. The Court found that in this
case, questions of fact remained regarding how Defendant's staff
failed to recognize risks of harm to Plaintiff, given their
immediate proximity to the alleged assault and the suspicious
circumstances surrounding the resident's presence in the recovery
room. The Court noted that this decision created no new obligation
for hospitals to insure patients against risks that are not
reasonably perceivable: rather, it mandated only that unusual
circumstances which indicate that the patient may be at risk
trigger a heightened duty to protect a patient.

================================================================
CRIMINAL PROCEDURE - GUILTY PLEA - DEATH PENALTY - CRIM. PROC. LAW
§ 440.10 - CRIM. PROC. LAW § 400.27(1)

People v. Mower, 2002 N.Y. Int. 0016 (Feb. 14, 2002).

< http://www.law.cornell.edu/ny/ctap/I02_0016.htm >

ISSUE & DISPOSITION

Issue(s)

Whether the Court's previous determination that sections
220.15(5)(e) and 220.30(3)(b)(vii) of the Criminal Procedure Law
are unconstitutional and invalid eliminates a trial court's
statutory authorization to impose a sentence of life without
parole for a guilty plea to murder in the first degree.

Disposition

No. Where the People do not seek the death penalty, a trial court
may sentence a defendant who pleads guilty to murder in the first
degree to life without parole under Crim. Proc. Law § 400.27(1),
regardless of the constitutional infirmities of sections
220.15(5)(e) and 220.30(3)(b)(vii).

SUMMARY

In 1996, after murdering his parents and later being apprehended,
Defendant pled guilty to one count of murder in the first degree,
satisfying all charges, and received a negotiated life sentence
without parole. The People never sought the death penalty.

In 1998, the New York Court of Appeals relied upon the Supreme
Court's decision in United States v. Jackson, 390 U.S. 570 (1968)
to rule that sections 220.10(5)(e) and 220.30(3)(b)(vii) of the
Criminal Procedure law, the plea bargaining provisions for
defendants facing the death penalty, were unconstitutional and
invalid. See Hynes v. Tomei, 92 N.Y.2d 613 (1998).* A year after
this decision, Defendant made a CPL 440.10 motion to vacate his
conviction, arguing that his plea was invalid due to the
unconstitutionality of the Criminal Procedure Laws identified in
Hynes. The Supreme Court denied Defendant's application and the
Appellate Division affirmed. On appeal, the New York Court of
Appeals also affirmed.

In reaching its decision, the Court noted that the trial court's
authority to sentence Defendant was not derived from the Criminal
Procedure Law provisions found to be unconstitutional in Hynes.
Instead, Crim. Proc. Law § 400.27(1) applies to cases where
prosecutors do not seek the death penalty. Under this provision,
when prosecutors do not seek the death penalty, the sentencing
authority of the jury remains with the trial court, which may
impose the penalty of life without possibility of parole in the
event of a first degree murder conviction. Since Crim. Proc. Law §
1.20(13) defines "conviction" to include the entry of a plea of
guilty to a particular crime, a trial court may impose the penalty
of life imprisonment without parole when the conviction is based
on a guilty plea, regardless of the restrictions on plea
bargaining imposed in Hynes.

* For a summary of the Court's decision in Hynes v. Tomei, 92
N.Y.2d 613 (1998) and the related case law concerning plea
bargaining in the face of the death penalty, see the LII
Commentary for People v. Edwards, 2001 N.Y. Int. 0095 (July 5,
2001). < http://www.law.cornell.edu/ny/ctap/comments/i01_0095.htm>


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Decisions of the New York Court of Appeals are
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