A slight digression…a field trip

January 8, 2009
Appellate Division, First Judicial Department

If you’ve never been in the courthouse off Madison Square Park, do yourself a favor. The lobby alone is worth a look; the WPA murals are still as brilliant as the day they were laid. If you are there on business, however, you can get past the guards and into the cloakroom of wooden stalls and pegs for your top hat above dyads or such carved into the mahogany, rampant (as they used to say). But when you get into the august chamber itself, you’d wish they let you bring a camera. The associate I was with said this was where the ceremony was held to admit her into the Bar and thought the joint was really classy—and she is one sharp cookie, well-known to be given to dry understatement. It is a truly beautiful thing to conduct the People’s business under a ceiling of stunning Tiffany glass in elaborate pastel and marble scrolleries of vines and laurels around the block names of previous chief justices, each surmounted by an urn between matching torches, alternating with the word “EXCELSIOR” arched over a sunrise-&-windmill motif—no doubt in tribute to our Dutch forebears. And many more paintings of New York history and heritage in the surround, painted by Edwin Howland Blashfield. As well, if you’ve ever doubted the veracity of the phrase “high court”, this place will convince you. These five judges probably have more altitude than the Nazgul in Washington.

There were 20 cases scheduled for the afternoon session, starting at 2pm. This may sound like an ambitious agenda but it really isn’t. By the time a case has reached here, it has been honed to a fine edge, one that either shreds the whole Record-On-Appeal or is blunted by its rock-solid stolidity. All these Justices want to know is: does it meet the test requiring an overturn, or can they uphold? In each case, there is one point of contention; mostly it has to do with a prejudice of a jury member or a ruling which seemed unjust or (rarely) new evidence. Most are decided in chambers, by review, and never see the light of day. Then again, you could be going along with your everyday legal life, sending out letters and e-mails, even perhaps an S&C or BP, and amid the faxes and phone calls you get one that says: You have been scheduled for oral argument…

The procedure is simple: take a seat and wait until you’re called. Don’t expect preferential treatment, even of being taken in order. The justices are in charge and you’re there at their bidding. The only thing you’re guaranteed is that if you have a “10” or “15” after your cases name, when the green light goes on before your lectern you MAY get ten or fifteen minutes before them. Which can easily be 5 minutes with 2 questions and it’s “THANK YOU FOR PLAYING JEOPARDY! Please exit to the rear…” So relax and enjoy the show.

What follows is a smattering of impressions culled from a fascinated-but-disinterested observer that sunny Thursday a year ago.

People v. Gregory Wright – “missing witness”? “immediately after” “How do you translate that into…?” “No evidence seen just heard?” The Appellant’s “standard is People v. Gonzales...its general principle is that within 15 feet of a crime scene MIGHT be a material witness”? “You’re making it sound like a glimmer, a one-shot identification…” Respondent (State) is asked if he has anything to add: Nope, everything you’ve asked is ok by me! The Appellant gets to restate the case and is asked: “You took this pro bono, on behalf of your firm?...Thank you.”

If memory serves, the entire case was about a criminal act perpetrated in a bar, an assault with a pool cue or such, wherein the bouncer or bar employee was badly injured. The defense was self-defense, but there was no witness, per se. What was in question was the non-admission—by the court at the original trial--of the testimony of a friend of the defendant. Said witness was in an adjoining room and did not see the assault but heard the commotion, beginning with some threats being exchanged, and more, or so it is alleged.


184 West 10th Street Corp. v. Marvits – Appellant on the No-Pet Clause of the lease “I’m asking you what it said…assuming that a child kept in a goldfish bowl…” “…have a right to enforce on a substantial obligation…” “I think it would be insane to bring a case…” “…& I agree it would be insane for a landlord to…” “let’s assume the cats are cats…” “Judicial waver from the Respondent” “There is nothing in the statue that says a landlord has to enforce…” “Adverse possession…” “Open and Notorious…” “Under Robinson we don’t actually have to see the cats…´”These were shy cats, rather than outgoing cats…” “Litterbox…” “Let’s test that argument: Suppose they meow outside the doors?” [this causes laughter throughout the room]
Q&A between the parties:
Respondent: Can you make anything a substantial breach of obligation by putting it in the lease?
Appellant: …is represented in this case before three courts previously [think this entire line of questioning focuses on the “substantial breach” issue]
Respondent: REDIRECT—re-enforce the clause in the lease that says “any violation is cause for void of lease…. It means you are operating under an overly-broad language, asking we modify the terns by redefinition.”
Appellant: I’m not aware of any case where this is… [and goes back to administrative code and whether or not a contractor, let in for repairs, can act as an agent of the landlord in this issue]

The case hinged upon the eviction of a person for having cats. Over the years, it was no secret to the other tenants—some light meowing, some crumbs of stray clay litter on a welcome mat, but no scent or odor. Hence the “Open and Notorious” statement—which sound ludicrous from here. Yes, it means everybody knows there are cats there; but “Notorious”? Yes, a Term of Art, but…oh come on! This is one where the sad and the comic walk hand-in-hand.

People v. Michael Rose – Appellant’s 1st point, “he bought a small amount [crack] and used one-third himself, before turning the rest over to the actual purchaser who would distribute it…” [the next bit had something about “benefit and self-interest”, implying the benefit “up to the point at which he buys three bags…”] “In Harris, didn’t he use friend’s money to make a buy, before using his own?” “Everything in Harris, which is your best support, goes against you here.” “”I have nothing else to offer.” Respondent asks, So you are a 2nd year student? Appellant’s last ditch question: “Is it possible that the Appellant was only doing a favor for somebody else?”

This is pretty transparent. Appellant bought crack in a sufficient quantity to qualify for the maximum penalty for sale of narcotics. His claim is that it wasn’t his money, but a friend’s, and he only bought the drugs in order to satisfy his own habit, a third of which was going to be his to use. The best part is that the 2nd-year law student got to carry the ball this far and the court was impressed with his defense.

Sheffield v. B. Chancel – [International case] Appellant claims Lack of Jurisdiction as this is a corporate, US subsidiary of a Belgian or French company [unclear] and bears no relationship to anything in New York State. “…the foreign parent company sending products here to be sold?” “In NY or USA?” “Breach took place over there, French law to apply…” “Is there any substantial difference between arguments before Justice Lowe and Justice Baer?” “Centered around a stock purchase agreement…” “I see a tremendous distinction without a difference…” Respondent argues “It’s a red herring…” “The subsidiary counterclaim…” “If the case is dismissed here, does the counterclaim still stay here?” “It points to one phone conversation with the bad guy [with respect to compensation for the US subsidiary] while he was in Florida…and identifies himself as a Paris resident…” “Formal convenience…” And comes down to a mare’s nest of filings over and over and subsidiary claims were never pursued in France.

When viewed close-up you can see that this is the pivotal point as to whether the US Courts have the right to try this company in America. At stake is probably more money than most human beings will ever see. The fees on this one alone have put both firms in the black for this year, of that you can be sure.


Morsechi v. Dipasquale – Appellant offers Affirmative Defense Doctrine of Laches [with respect to 1988, when stock was transferred, or supposed to be transferred, to client] “A claim of prejudice?” “The Ex-partie motion moved to dismiss on delay.” “You cite various gifts, personal relationship—nothing to do with the chicken business.” “Some claim 18 years later—same in 2001 and 2004?” “The issue is not whether promises were made or not made.” “What is the prejudice?” “After the original action was dismissed in 1988, there were gifts…” “Ultimately, you have to show those gifts were on reliance…” Respondent: “The key issue is whether or not there was prejudice…” “The Ex-partie moving to dismiss under the Doctrine of Laches, not once in that Affidavit was there one defense of prejudice!” “Two individuals entered into a personal relationship in 1976, before the entity was established…” Matrimonial, Engagement Ring, Cars, etc. 1988 was about the establishment of an interest [probably of mutual assets] and that she was the owner of this company…”

At its core, this is about a husband and wife (or a couple that played around with the idea of marriage, more or less) who went into the chicken business in the late 70’s/early 80’s and divorced, or parted ways, somewhat amicably, around 1988. When they split, the idea was not to split up the company…as much as…sort of, keep it together but… It gets pretty greasy here, and with less traction due to the fact He kept giving She gifts and promises but maybe never actually signed over any stock to Her, but She accepts these tokens of affection without realizing they would later be referred to as partial payment, or something. So where do you draw the line at this? In time and Laches? Or love on the installment plan?


People v. Morales – The Appellant alleges there were 2 errors by the court. The Respondent says the judges are very consistent (very affirmative) “the presumption is severely rebuttable…” “…3 unidentified gunshots at officers…” “…55 bags” The Lady DA is pleading the sentence is just for the compound felony of drugs, weapons and attempted murder. The Appellant says this “addresses the point of Gonzales, with respect to a man who was willing to kill to protect his drug trade…”

This was a drug bust that resulted in a conviction in 1978 and the Appellant has already been serving for 30 years by this point. You get the impression that this is a real “jail-house lawyer” who has nothing but time on his hands and figures he might as well give it a shot. The appeal is to determine whether the penalty with respect to the drug sentence part of it, should be reduced.


Speranza v. Reprolab – This is the marquee attraction here. Looked at strictly on the ruling, it should be a slam-dunk. Son goes to sperm bank and deposits, signs and checks off box for disposal on death. Dies a few years later of massive cerebral hemorrhage. Mother goes through papers, finds contract, contacts sperm bank, is told they are going to dispose of specimens and then… Mother begs not to, says last hope for children. She is told: 1) he said toss them and that’s in the contract; and 2) even if he said otherwise, NYS Health Dept. Code says they can not be used without testing for disease PRIOR to freezing. Mother promises to pay storage fees, says she’ll get attorney to change the laws…

It didn’t work out that way. Hence, the arrival in this chamber, and, as well, they reason it was called out of sequence (originally the last on the day’s schedule) is because, in all probability…THEY JUST COULDN’T WAIT.

The judges are human, you see, and this issue is one that is going to be used as precedent well into the future. We are already in a world where the Rights of the Un-Born are frequently considered over and above those of the Born. The next phase may just be the Rights of the Unconceived. [Don’t laugh… Ok—laugh if you want. But not too loud or too long.] What gets said in this Appeal may not EXACTLY have to do with the Law, which is pretty cut and dried, but even a Minority Opinion may get cited down the road for nuances which no one can predict.

For the Respondent, this is icing on the cake. There’s no question of any liability or even adverse possession, no position they can’t accommodate. All the Justice Questions are therefore, softballs, at best, if not philosophically ruminative.
JQ: So the reason behind the delay of disposal?
RA: Who’s harmed? As long as my client’s license is in order…
JQ: So your position is?
RA: We’ll do whatever the court wants.
JQ: Even if this goes outside of the State of New York?
RA: I have no problem with that either. And the Attorney General of the State was asked to take a position on this and refused, so there’s no restriction there either.
JQ: The Family Court judge in me, as well as the Surrogate Court judge in me…is troubled by this. We’re getting into territory of who has the rights to bring another child into the world from Mr. Sepranza’s sperm. And we are not unmindful of the Mother’s sorrow and hopes.
JQ: The problem is that it would not be going to a regular sexual partner, as well…

The Appellants have a TRO on the case, which is the first question as to status; the vials of vile remain inviolate. Their motion is then that the sperm bank’s taking of storage fees—against the dictates of the State Health Code—constitutes a Reformation of the Contract between the Estate and the bank, which gives them certain rights over the specimens. It is a good gambit; contract law is the hardest on the books—if you get a point across there, you’ve got a real foothold. The Justice Questions come quick and fast, and sharp. The Appellant Answers each on the pivot, ready to swivel on any new tack that offers some air.
JQ: You say the lab sat on its rights when it didn’t dispose?
AA: It appears as if they were prepared to accept a new contract.
JQ: What’s the basis of reformation? You have a contract?
AA: Their acceptance of the fees for continued storage.
JQ: Wouldn’t the two regulations be dispositive?
AA: That’s what we’re here to test as well.
JQ: What’s the purpose of the samples: storage or donor?
AA: Of course, we’ll never know, but the action itself has a meaning beyond the scope of making a deposit and paying fees.
JQ: The second problem is the Department of Health.
AA: It may be possible to test the samples in the future, something might be developed.
JQ: As for reformation?
AA: We see the Estate as a new entity within the contract to take possession.
JQ: But in order to get to reformation, don’t you have to have some execution of the original?

Ok. NO answers here and no conclusions. This is merely the true art of the Law: a bit of debate in open court. Should be simple--but it isn't. The world of talking points, and pre-packaged scripts, the ability to respond to the immediacy of an issue, and with substance, not persiflage, is a fine thing to see.