The Fifth Circuit Court of Appeal’s affirmation of the district court’s holding that defendants’ partnerships were properly disregarded as shams but that the valuation-misstatement penalty did not apply, is reversed, where: 1) the district court had jurisdiction to determine whether the partnerships’ lack of economic substance could justify imposing a valuation-misstatement penalty on the partners; and 2) the penalty is applicable to tax underpayments resulting from the defendant-partners’ participation in the COBRA tax shelter.
The Fifth Circuit Court of Appeals’ denial of a petition for a writ of mandamus requesting the district court dismiss a construction dispute case brought against petitioner, or to transfer it to the Eastern District of Virginia pursuant to a forum selection clause in the parties’ contract, is reversed and remanded, where: 1) a forum-selection clause may be enforced by a motion to transfer under 28 U.S.C. section 1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented;” 2) when a defendant files a section 1404(a) motion, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer; and 3) no such exceptional factors appear to be present in this case.
In a suit to recover interest from the government on plaintiff’s tax overpayment for the period between the payment and the ultimate refund, the Sixth Circuit’s judgment that 26 U.S.C. section 6611(a) should be strictly construed in favor of the government, and the date of overpayment was the date that plaintiff requested that the IRS treat the remittances as payments of tax, is vacated and remanded, where: 1) the government now argues that the only basis for jurisdiction, and the only general waiver of sovereign immunity that encompasses plaintiff’s claim, is the Tucker Act, 28 U.S.C. section 1491(a); and 2) the Sixth Circuit should have the first opportunity to consider the government’s new contention with respect to jurisdiction in this case.
The Appellate Division properly granted summary judgment to plaintiff in a dispute regarding defendant’s obligation to pay rent, where: 1) the pertinent lease obligated defendant to pay the full annual basic rent for calendar year 2007 to plaintiff on January 1, 2007; 2) although defendant terminated the lease a week later, the parties did not agree in the lease to apportion rent post-termination except in specified circumstances not relevant here; and 3) defendant’s claim that the parties agreed orally to such apportionment is barred by the lease’s “no oral modification” clause.
Defendants’ convictions for robbery are affirmed, where: 1) defendants were not deprived of effective representation at trial by, among other alleged omissions, counsel’s failure to assert as an affirmative defense that one of two weapons allegedly displayed during the robbery “was not a loaded weapon from which a shot, readily capable of producing death or serious physical injury, could be discharged”; and 2) record support exists for the lower courts’ determination that the robbery victim’s showup identification of defendants was proper.
Defendant’s involuntary commitment for Intensive Treatment pursuant to his designation as a sex offender requiring strict and intensive supervision and treatment (SIST) is reversed and remanded, where Mental Hygiene Law article 10 does not permit confinement as part of SIST.
When a missing witness charge is requested in a civil case, the uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. Here, the uncalled witness’s testimony was only cumulative of the opposing witness’s testimony, so the Supreme Court erred in denying plaintiff’s request for a missing witness charge, and the error was not harmless.
Defendant’s conviction for criminal possession of a controlled substance in the first degree is reversed and remanded for a new trial, where: 1) in this case, the proof connecting defendant to the drugs was wholly circumstantial; 2) the trial court erred in denying defendant’s request for a circumstantial evidence charge; and 3) the error was not harmless.
The Appellate Division’s order affirming the vacatur of plaintiff’s judgment against defendant Port Authority for injuries incurred in the 1993 World Trade Center bombing, is reversed and remanded, where: 1) plaintiff’s judgment had become final when defendant Port Authority failed to appeal within the requisite time period; 2) the prior liability order upon which plaintiff’s judgment was based was reversed by this Court in a companion case; but 3) the holding in the companion case did not divest Supreme Court of its authority to review the equities with respect to these parties in determining whether to vacate the judgment, nor did it mandate that the court grant the vacatur motion by rote.