JUST RELEASED

September Page II

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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COURT OF APPEALS

CRIMINAL LAW (PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/SEARCH AND SEIZURE (CRIMINAL LAW, SEARCH AND SEIZURE, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/INVENTORY SEARCH (CRIMINAL LAW, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))/APPEALS (COURT OF APPEALS, CRIMINAL LAW, INVENTORY SEARCH, PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP))

CRIMINAL LAW, APPEALS.

PEOPLE DEMONSTRATED INVENTORY SEARCH WAS VALID, DESPITE EXPECTATION CONTRABAND WOULD BE FOUND, CREDIBILITY OF POLICE WITNESSES BEYOND REVIEW BY COURT OF APPEALS (CT APP).

The Court of Appeals, in a brief memorandum decision, determined the People had demonstrated the search of defendant's car was a valid inventory search, despite the expectation contraband would be found. The defendant's argument the search was a ruse depended upon the credibility of the police witnesses, a mixed question of law and fact that cannot be reached by the Court of Appeals:

"[T]he People met their burden of establishing that the [inventory] search was in accordance with procedure and resulted in a meaningful inventory list" and that the primary objectives of the search were to preserve the property located inside the vehicle and to protect police from a claim of lost property ... . The fact that the officers knew that contraband might be recovered does "not invalidate the entire search" ... . "The inventory here, while not a model, was sufficient to meet the constitutional minimum" ... .

 

The determinations of the lower courts regarding the credibility of the officers and whether the inventory search was a ruse to look for contraband present mixed questions of law and fact ... . A mixed question is presented when "the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference[s] to be drawn" ... . Inasmuch as there is record support for the lower courts' conclusion that the primary purpose of the search was to inventory the property located in the vehicle, that issue is beyond further review by this Court ... . People v Lee, 2017 NY Slip Op 06415, CtApp 9-12-17

NEGLIGENCE (SLIP AND FALL, SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT RETAIL STORE, STORE DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE HAZARDOUS CONDITION (CT APP))/SLIP AND FALL (SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT RETAIL STORE, STORE DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE HAZARDOUS CONDITION (CT APP))

NEGLIGENCE.

SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT RETAIL STORE, STORE DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE HAZARDOUS CONDITION (CT APP).

The Court of Appeals, in a brief memorandum decision reversing the appellate division, determined summary judgment should not have been granted to the defendant retail store in this slip and fall case. The facts of the case were not discussed:

In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence ... . Triable issues of fact exist as to whether Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. had notice of a hazardous condition and a reasonable time to correct or warn about its existence.  Parietti v Wal-Mart Stores, Inc., 2017 NY Slip Op 06479, CtApp 9-14-17

APPELLATE DIVISION

CIVIL PROCEDURE (FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))/APPEALS (CIVIL PROCEDURE, FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))/FORECLOSURE (FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT))

CIVIL PROCEDURE, APPEALS, FORECLOSURE.

FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, ISSUE WAS NEVER JOINED, EVEN THOUGH THE DEFENSE WAS FIRST RAISED IN REPLY PAPERS, IT COULD BE CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this foreclosure action should not have been dismissed because issue was never joined. Even though the defense was first raised in the reply papers, it could be considered on appeal because the issue is apparent on the face of the record and the lower court would have been required to address it:

 

... [T]he Supreme Court conditionally dismissed the action pursuant to CPLR 3216 unless the plaintiff filed a note of issue or otherwise moved for entry of a judgment within 90 days. The action was thereafter administratively dismissed ... .

 

... [T]he plaintiff moved, inter alia, to vacate the conditional order of dismissal and to restore the action to the calendar. ... [T]he Supreme Court denied the plaintiff's motion, finding that the plaintiff failed to present a reasonable excuse for not complying with the conditional 90-day order to dismiss and that the delay since the time that the referee was appointed was substantial. ...

 

... [D]ismissal of the action pursuant to the ... conditional order was improper, as issue was never joined inasmuch as none of the defendants served an answer to the complaint... .. Since at least one precondition set forth in CPLR 3216 was not met here, the Supreme Court was without power to dismiss the action pursuant to that statute ... .

 

Although the plaintiff did not raise, until its reply papers, the argument that this action was improperly dismissed pursuant to CPLR 3216 because issue had not been joined, we may consider it on appeal since the reply papers did not present new facts but only raised an issue of law which appeared on the face of the record and could not have been avoided if brought to the attention of the Supreme Court at the proper juncture ... . U.S. Bank N.A. v Ricketts, 2017 NY Slip Op 06475, Second Dept 9-13-17

CIVIL PROCEDURE (NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/NAIL AND MAIL (GENERAL BUSINESS LAW, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/GENERAL BUSINESS LAW  (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))

CIVIL PROCEDURE, FORECLOSURE.

QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a question of fact was raised whether plaintiff bank was aware defendants observed Saturday as a holy day, thereby invalidating nail and mail service on Saturday in this foreclosure action:

General Business Law § 13 provides: "Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor."

 

The defendants contend that the plaintiff's counsel was aware that they are observant, Orthodox Jewish persons who adhere to the Sabbath, and thus, the Saturday affixation of process to the door of their residence was invalid. This appears to be an issue of first impression for this Court. We agree with the other courts that have addressed the issue, which have consistently held, for more than a century, that service in violation of General Business Law § 13, or its predecessor statute, is void, and personal jurisdiction is not obtained over the party served ... . Moreover, we hold that the statute applies not only to personal service upon a defendant, but also to the affixation portion of "nail and mail" service pursuant to CPLR 308(4) on the door of a defendant's residence, as occurred here ... . JPMorgan Chase Bank, N.A. v Lilker, 2017 NY Slip Op 06434, Second Dept 9-13-17

CIVIL RIGHTS LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/42 USC 1983 (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/INTENTIONAL TORTS (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, 42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, INDIVIDUAL POLICE OFFICERS NEED NOT BE NAMED IN THE NOTICE OF CLAIM (SECOND DEPT))/FALSE ARREST (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/FALSE IMPRISONMENT (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MALICIOUS PROSECUTION (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))

CIVIL RIGHTS LAW (42 USC 1983), MUNICIPAL LAW, INTENTIONAL TORTS.

42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant's 42 USC 1983 cause of action, as well as the malicious prosecution cause of action, should not have been dismissed. The court noted that the notice of claim need not name any individual police officers who are subsequently sued (acknowledging a split of authority on the issue). The court also explained the statutes of limitations as they apply to false arrest, false imprisonment, malicious prosecution and 42 USC 1983 causes of action:

The complaint alleged that the defendants arrested, detained, and prosecuted the plaintiff without probable cause and that they knew that the criminal complaint contained falsehoods. The eyewitness's affidavit ... supported these allegations by asserting that police and an ADA coerced the eyewitness to make a false identification of the plaintiff. ...

 

Further, ... the eyewitness's affidavit did not present feigned issues of fact. The eyewitness did not give any prior testimony in this action ... . ... [H]is affidavit did not contradict the plaintiff's prior testimony, including the plaintiff's deposition testimony that the eyewitness was "scared" when the police talked to him about the shooting. ...

[T]he plaintiff raised a triable issue of fact as to whether Detective Failla's evaluation of probable cause was objectively reasonable, thus precluding an award of summary judgment in Detective Failla's favor on the ground of qualified immunity ... .

... [W]e have held that the plain language of General Municipal Law § 50-e(2) does not require a notice of claim to "[list] the names of the individuals who allegedly committed the wrongdoing" ... . Williams v City of New York, 2017 NY Slip Op 06477, Second Dept 9-13-17

 

 

 

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/WIRETAPS (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EAVESDROPPING (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))

  

CRIMINAL LAW, EVIDENCE.

(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).

The Second Department, in affirming the conviction of defendants as part of a large scale heroin distribution operation, determined it was error to allow the lead detective to explain to the jury the roles played by the persons recorded by the wiretaps. It was also error to admit the wiretap orders into evidence. Given the overwhelming evidence, however, the errors were deemed harmless:

... [W]hile "it was error to permit the prosecutor to elicit testimony [from the investigating detective] as to the roles played by the individuals overheard in the phone calls[ ] and the relationships among them, . . . and the meanings of certain case-specific' terms that he had discovered in the course of the investigation" ... , the error was harmless, "as the proof of the defendant's commission of the charged crimes was overwhelming, and there is no significant probability that, but for the error, the verdict . . . would have been less adverse'" ... .

 

The County Court also improvidently exercised its discretion in admitting into evidence the wiretap court orders. Although the court orders were relevant, as authorizing the wiretapping that led to a large part of the People's evidence, and their admission had a tendency to prove the existence of a material fact, i.e., that the wiretapping was authorized ... , that same fact could have been established without the prejudice they caused. Nevertheless, here, too, the error was harmless. People v Guzman, 2017 NY Slip Op 06454, Second Dept 9-13-17

 

 

CRIMINAL LAW ((HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/SHAKEN BABY SYNDROME (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))

 

CRIMINAL LAW, EVIDENCE.

(HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT).

The Second Department, in affirming defendant's conviction, noted that it was (harmless) error to show the jury the injured child in this shaken baby case because the extent of the long-term effects of the injury was not an element of the crime:

We agree with the defendant that the Supreme Court improvidently exercised its discretion in allowing the People to display the injured child to the jury during the mother's testimony, since the extent of the child's long-term injuries was not an element of the crime ... , and such display only served to prejudice the defense by arousing the emotions of the jury ... . Nevertheless, the error was harmless ... . Given the extensive and uncontroverted medical evidence supporting the diagnosis of shaken baby syndrome and that the child's injuries could have only occurred when the child was with the defendant, the evidence of the defendant's guilt was overwhelming. Moreover, there is no significant probability that the jury would have acquitted the defendant had it not been for the error ... . People v Narine, 2017 NY Slip Op 06460, Second Dept 9-13-17

 

CRIMINAL LAW (IMMUNITY, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IMMUNITY, GRAND JURY TESTIMONY,  DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/GRAND JURY (IMMUNITY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/IMMUNITY (CRIMINAL LAW, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))

 

CRIMINAL LAW, EVIDENCE.

DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT).

The Second Department, modifying Supreme Court, determined charges relating to a forged deed were not protected the by the transactional immunity afforded grand jury witnesses. Defendant had testified before a grand jury about a burglary at real property she claimed to own. Subsequently defendant was charged with grand larceny (stealing the real property), possessing a forged deed, filing the forged deed and perjury (in the grand jury proceeding). The Second Department determined the grand larceny count was properly dismissed because it directly related to defendant's testimony before the grand jury (claiming  that she owned the real property). However, the charges forged deed charges were not related to her grand jury testimony and therefore those charges were reinstated:

The defendant's grand jury testimony that she was the owner of the real property would be relevant to establishing the defendant's alleged intent to deprive the rightful owners of the real property ... . Thus, the defendant testified to the "transaction, matter or thing" for which she stands indicted ... , and her testimony may "tend to a conviction when combined with proof of other circumstances which others may supply" ... . Accordingly, the Supreme Court properly found that the defendant's testimony conferred immunity upon her from prosecution of grand larceny in the second degree. * * *

 

... [A]lthough the defendant testified that she owned the real property, she did not testify how she purportedly came into ownership of the real property. Her claim of ownership is not relevant to establishing her knowledge that the deed to the real property was forged, her intent to use that deed to defraud another person, her presentment of the deed to the City Register, or her belief that the deed would be accepted for filing ... , and thus, does not "tend to a conviction when combined with proof of other circumstances which others may supply" ... . Under these circumstances, the defendant was not entitled to immunity from prosecution for criminal possession of a forged instrument in the second degree and offering a false instrument for filing in the first degree, and counts two and three of the indictment must be reinstated. People v O'Neal, 2017 NY Slip Op 06461, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))

CRIMINAL LAW, EVIDENCE.

(HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT).

The Second Department, in affirming defendant's conviction, noted that it was error to allow the prosecutor to cross-examine a defense witness about the witness's gang affiliation. Gang membership had no relationship to the charges:

The Supreme Court erred in allowing the prosecutor to cross-examine a defense witness regarding her possible gang affiliations since there was no connection between gang membership and the alleged crime ... . It was also improper to allow the prosecutor to introduce extrinsic evidence to impeach that witness's credibility when she denied being affiliated with a gang ... . However, because there was overwhelming evidence of the defendant's guilt and no significant probability that these errors contributed to the defendant's convictions, the errors were harmless ... . People v Chinloy, 2017 NY Slip Op 06450, Second Dept 9-13-17

 

CRIMINAL LAW (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PREDICATE FELONY, SENTENCING, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/APPEALS (CRIMINAL LAW, PREDICATE FELONY STATEMENT, PRESERVATION, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/SENTENCING (PREDICATE FELONY STATEMENT, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/PREDICATE FELONY STATEMENT (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))

 

CRIMINAL LAW, EVIDENCE, APPEALS.

FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT).

The Third Department determined the failure to file a predicate felony statement required resentencing, despite the failure to preserve the issue by an appropriate motion:

 

Defendant contends, among other things, that the resentence is invalid because a predicate felony statement was not filed in accordance with CPL 400.21 (2) before he was sentenced as a second felony drug offender ... . Although this claim has not been preserved for our review due to defendant's failure to make an appropriate motion ... , under the particular circumstances presented, we exercise our discretion in the interest of justice to take corrective action ... . The People concede and the record reveals that a predicate felony statement was never filed as is required by CPL 400.21 (2). In addition, there is no indication that defendant had notice that he would be sentenced as a second felony drug offender when he admitted to the probation violations or at resentencing. Consequently, defendant did not have an opportunity to contest his prior convictions. In view of this, the resentence must be vacated and the matter remitted to County Court for resentencing ... . People v Fenner, 2017 NY Slip Op 06483, Third Dept 9-14-17

DEFAMATION (MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT))/CIVIL PROCEDURE (DEFAMATION, MOTIONS TO DISMISS, MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT))

 

DEFAMATION, CIVIL PROCEDURE.

MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Chambers, determined certain statements made by defendant Eliot Spitzer (former New York Attorney General) concerning Hank Greenberg (former CEO of AIG) supported defamation causes of action. The opinion went through the long list of statements alleged to be defamatory in the complaint in the context of Spitzer's motions to dismiss. Many, but not all, of the statements were found actionable and the complaint was deemed to have adequately alleged the actionable statements were made with malice:

This appeal presents an opportunity to discuss in some detail the proper application of CPLR 3211(a)(1) and (7) in the context of an action sounding in defamation. * * *

"Since falsity is a necessary element of a defamation cause of action and only facts' are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action'"... .Thus, "[a]n expression of pure opinion is not actionable, . . . no matter how vituperative or unreasonable it may be" ... .

"A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts" ... . Conversely, "an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable" ... .

"Whether a particular statement constitutes an opinion or an objective fact is a question of law" ... . "In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers [or listeners] that the statement is likely to be opinion, not fact" ... . "The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion" ... . Greenberg v Spitzer, 2017 NY Slip Op 06432, Second Dept 9-13-17

EDUCATION-SCHOOL LAW (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/COLLEGES (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CIVIL PROCEDURE (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/ARTICLE 78  (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/STATUTE OF LIMITATIONS (ARTICLE 78, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CONTRACT LAW (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))

EDUCATION-SCHOOL LAW, CIVIL PROCEDURE.

AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT).

The Second Department determined the defendant college's motion to dismiss plaintiff-student's breach of contract complaint as time-barred was properly granted. Plaintiff-student had received a failing grade and was ultimately dismissed from the program. The plaintiff's mechanism for redress was an Article 78 proceeding, which has a four-month statute of limitations. The fact that the plaintiff attempted to bring a timely breach of contract action was to no avail:

 "Although decisions made by educational institutions as to academic issues are not completely beyond the scope of judicial scrutiny, review is restricted to special proceedings under CPLR article 78, and only to determine whether the decision was arbitrary, capricious, irrational, or in bad faith" ... . 

 

Here, the plaintiff's complaint challenged her dismissal from Teachers College following her receipt of a failing grade in the elective course. This is an academic determination for which the plaintiff should have sought review in the context of a proceeding pursuant to CPLR article 78... . Since the plaintiff's claims would have been barred by the four-month statute of limitations applicable to such a proceeding ... , the Supreme Court properly granted Teachers College's motion to dismiss the complaint on the ground that it was time-barred ... . Hernandez v Teachers Coll., Columbia Univ., 2017 NY Slip Op 06433, Second Dept 9-13-17

ELECTION LAW (DESCRIPTION OF OFFICE SOUGHT WAS SUFFICIENT, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT))/DESIGNATING PETITION (ELECTION LAW, DESCRIPTION OF OFFICE SOUGHT WAS SUFFICIENT, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT))

ELECTION LAW.

DESCRIPTION OF OFFICE SOUGHT WAS SUFFICIENT, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the designating petition should not have been invalidated because the description of the office sought was sufficient:

"Election Law § 6-132 (1) requires that each sheet of a designating petition state the public office or party position sought by the candidate'" ... . Since many public offices and party positions are susceptible to a variety of descriptions, the " description will be deemed adequate so long as the petition, read as a whole, is sufficiently informative . . . so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections'" ... .

 

Here, the public office sought by Coll, Nassau County Legislator, 15th Legislative District, was described on the designating petition as "15th District Nassau County Legislature," which was sufficiently informative so as to preclude any reasonable probability of confusing or deceiving the signers, voters, or board of elections ... . Matter of Fochtman v Coll, 2017 NY Slip Op 06414, Second Dept 9-11-17

EMPLOYMENT LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/LABOR LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CLASS ACTIONS (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/HOME HEALTH CARE WORKERS (EMPLOYMENT LAW, PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/MINIMUM WAGE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))

 

 

EMPLOYMENT LAW, LABOR LAW, CIVIL PROCEDURE.

PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).

The Second Department determined the plaintiff home health care workers were properly certified to bring a class action suit alleging inadequate pay in violation of the minimum wage requirements of the Labor Law. The plaintiffs worked at clients' residences in 24-hour shifts. They were paid an hourly rate for the 12 daytime hours of their 24-hour shifts and a flat rate for the 12 nighttime hours. The plaintiffs argue they were entitled to the minimum wage for each hour of their 24-hour shifts:

The plaintiffs were required to be at the clients' residences and were also required to perform services there if called upon to do so. To interpret that regulation to mean that the plaintiffs were not, during those nighttime hours, "required to be available for work" simply because it turned out that they were not called upon to perform services is contrary to the plain meaning of "available" ... . ...[T]o the extent that the members of the proposed class were not "residential" employees who "live[d] on the premises of the employer," they were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep and meals ... . ...

... [T]he plaintiffs established the existence of the five prerequisites to class certification ... , and none of the factors listed in CPLR 902 warranted a denial of the motion ... . Andryeyeva v New York Health Care, Inc., 2017 NY Slip Op 06421, Second Dept 9-13-17

Similar issues and result in Moreno v Future Care Health Servs., Inc., 2017 NY Slip Op 06439, Second Dept 9-13-17

FAMILY LAW (FAMILY COURT EXERCISED THE PROPER LEVEL OF CONSIDERATION OF THE AMERICANS WITH DISABILITIES ACT IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, THE MOOTNESS EXCEPTION APPLIED TO THE APPEAL (FIRST DEPT))/PARENTAL RIGHTS (FAMILY COURT EXERCISED THE PROPER LEVEL OF CONSIDERATION OF THE AMERICANS WITH DISABILITIES ACT IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, THE MOOTNESS EXCEPTION APPLIED TO THE APPEAL (FIRST DEPT))/APPEALS (MOOTNESS EXCEPTION, FAMILY COURT EXERCISED THE PROPER LEVEL OF CONSIDERATION OF THE AMERICANS WITH DISABILITIES ACT IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, THE MOOTNESS EXCEPTION APPLIED TO THE APPEAL (FIRST DEPT))/MOOTNESS EXCEPTION  (APPEALS, FAMILY COURT EXERCISED THE PROPER LEVEL OF CONSIDERATION OF THE AMERICANS WITH DISABILITIES ACT IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, THE MOOTNESS EXCEPTION APPLIED TO THE APPEAL (FIRST DEPT))/AMERICANS WITH DISABILITIES ACT (ADA)  (FAMILY COURT EXERCISED THE PROPER LEVEL OF CONSIDERATION OF THE AMERICANS WITH DISABILITIES ACT IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, THE MOOTNESS EXCEPTION APPLIED TO THE APPEAL (FIRST DEPT))

FAMILY LAW, APPEALS.

FAMILY COURT EXERCISED THE PROPER LEVEL OF CONSIDERATION OF THE AMERICANS WITH DISABILITIES ACT IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, THE MOOTNESS EXCEPTION APPLIED TO THE APPEAL (FIRST DEPT).

The First Department determined Family Court gave proper consideration to the Americans with Disabilities Act (ADA) in evaluating the termination of parental rights. The main issue raised at the permanency hearing was "to what degree the [foster care] agency was required to accommodate the parents' cognitive disabilities when discharging its obligation to pursue the goal of return to parent." The First Department also found that the mootness exception applied to the appeal (the issue is likely to come up again):

While Family Court correctly determined that the ADA is not applicable to this proceeding (see Matter of La'Asia Lanae S., 23 AD3d 271 [1st Dept 2005]), the law makes clear, as Family Court recognized and the parties in this case agreed, that "the agencies' efforts towards a permanency plan must be tailored to the particular circumstances and individuals in a given case" ... . As the Family Court held in La'Asia  ... (91 Misc 2d 28, 42-43 ...) , in the context of termination of parental rights actions, a court may properly look to the ADA's standards for guidance in evaluating whether "diligent efforts" were made by the agency under Social Services Law § 384-b(7). The Family Court here acknowledged that it was required to consider the mother's special needs when determining if the agency's efforts were reasonable in this case. After evaluating the agency's efforts in that light, the court found that the agency satisfied its obligation to tailor its efforts to the mother's needs ... and that the agency's reunification efforts were reasonable under the circumstances ... .

 

In precluding litigation of ADA claims during the permanency hearing, but considerate of its purpose to guide the reasonable efforts analysis, the Family Court properly complied with the requirements as set forth by the court in the La'Asia case. Matter of Lacee L. (Stephanie L.--Dekodia L.), 2017 NY Slip Op 06418, First Dept 9-12-17

 

NEGLIGENCE (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/CORPORATION LAW (PIERCE CORPORATE VEIL, MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/PIERCE CORPORATE VEIL (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))CRANES (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/LABOR LAW-CONSTRUCTION LAW  (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))

LABOR LAW-CONSTRUCTION LAW, NEGLIGENCE, CORPORATION LAW.

MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined the corporate veil was properly pierced, a defense expert's testimony was properly excluded, and millions in damages for pre-impact terror, conscious pain and suffering, as well as punitive damages, were warranted. However, the court deemed the damages awarded by the jury excessive. The defendants were responsible for ordering a new part for a construction crane defendants provided at a construction site. There was evidence the manufacturer of the part was known to be incompetent but was chosen by the defendants anyway to cut costs. The defendants were aware of serious flaws in a similar part made by the same manufacturer. There was evidence the required testing procedures for the new part were deliberately circumvented by the defendants. The evidence supported the jury's conclusion that the new part failed causing the crane to fall 200 feet, fatally injuring the plaintiffs, the crane operator (Leo) and a co-worker (Kurtaj) on the ground:

... [O]ne individual (Lomma) exercised domination and control over three separate corporations which he treated as one entity.

 

There was ... sufficient evidence to permit the jury to assess personal liability against Lomma. Contrary to Lomma's arguments, plaintiffs presented substantial evidence of Lomma's personal participation in the corporate defendants' affirmatively tortious acts launching the dangerous instrumentality that caused the deaths of plaintiffs' decedents ... . ...

 

The trial court properly precluded the proposed testimony of defense expert James Wiethorn, which not only was not based on facts in the record, but also contradicted facts in the record ... . * * *

Preimpact terror is a sub-category of conscious pain and suffering ... . * * *

While Lomma and his companies, which dominated the crane rental market in New York, may not have intended to cause plaintiffs' deaths, these deaths nevertheless arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course. * * *

"[I]t is the duty of the court to keep a verdict for punitive damages within reasonable bounds considering the purpose to be achieved as well as the mala fides of the defendant in the particular case"... . Moreover, "[a]lthough states possess considerable discretion over the imposition of punitive damages, the United States Supreme Court has emphasized that there are constitutional limitations on such awards, and that the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments upon a tortfeasor" ... . Matter of 91st St. Crane Collapse Litig., 2017 NY Slip Op 06419, First Dept 9-12-17

 

NEGLIGENCE (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER'S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF'S DECEDENT (SECOND DEPT))/TRAFFIC ACCIDENTS (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER'S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF'S DECEDENT (SECOND DEPT))/PEDESTRIANS (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER'S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF'S DECEDENT (SECOND DEPT))

NEGLIGENCE.

SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER'S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF'S DECEDENT (SECOND DEPT).

The Second Department determined defendant corporation's (FHGC's) motion for summary judgment in this traffic accident case was properly granted. FHGC was re-sodding an area near the curb. FHGC's employee signaled to defendant driver to stop. Defendant driver (Miketta)  then backed down the road and struck plaintiff's decedent. Plaintiff sued Miketta and FHGC. The court held that the order to stop merely furnished a condition for the accident to occur, but was not a proximate cause of the accident:

... "[L]iability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event' but was not one of its causes" ... .

 

... FHGC demonstrated its prima facie entitlement to judgment as a matter of law by presenting evidence that its employees' conduct in performing work near the roadway merely furnished the condition or occasion for the accident, and was not a proximate cause of the decedent's injuries. Miketta's decision to reverse her vehicle and drive back down the one-way street, ultimately striking the decedent, was the sole proximate cause of the accident ... . Goldstein v Kingston, 2017 NY Slip Op 06429, Second Dept 9-13-17

 

 

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))

 

NEGLIGENCE.

PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded plaintiff in this traffic accident case. Plaintiff's decedent had run out of gas and was struck from behind by defendant. The Second Department held that plaintiff had not demonstrated freedom from comparative fault:

To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that he or she was free from comparative fault ... . Here, the plaintiff failed to meet that burden, as her own evidence, which included the defendants' expert witness disclosure, raised triable issues of fact as to whether the decedent failed to warn other drivers of the hazard posed by his stalled vehicle, including by failing to keep his headlights illuminated, and, if so, whether such failure contributed to the defendant driver's failure to see the decedent's vehicle before the collision ... . Palmer v Ecco III Enters., Inc., 2017 NY Slip Op 06446, Second Dept 9-13-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, NOTICE OF CLAIM, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))/LIGHTING (SLIP AND FALL, FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT))

NEGLIGENCE, MUNICIPAL LAW.

FAILURE TO MENTION INADEQUATE LIGHTING IN THE NOTICE OF CLAIM DID NOT WARRANT SUMMARY JUDGMENT ON THE RELATED CAUSE OF ACTION IN THE COMPLAINT (SECOND DEPT).

The Second Department determined Supreme Court properly refused to grant summary judgment dismissing a portion of the complaint which alleged inadequate lighting as a cause of plaintiff's slip and fall.  Plaintiff alleged she tripped over a rolled up mat after voting at an elementary school:

The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the municipality to investigate the claim ... .

 

Here, the plaintiffs' notice of claim, which set forth [plaintiff] was "caused to fall as a result of a rolled up mat" which was positioned several feet in front of the door inside Hiawatha Elementary School, included information which was sufficient to enable the defendants to investigate the claim. * * *

Here, testimony at the hearing held pursuant to General Municipal Law § 50-h, which established the lighting conditions at the time and place of [plaintiff's] accident, supplemented the notice of claim and provided the defendants with additional information regarding the manner in which the claim arose ... . Moreover, an incident report prepared by the defendants' employee shortly after [plaintiff's] accident noted that the area where she fell was dark due to a power loss at the building. Contrary to the defendants' contention, the plaintiffs' bill of particulars, which alleged, inter alia, that the occurrence and resulting injury were caused by the defendants' negligence in "placing a rolled up mat in the walkway in a poorly lit area in front of the exit from the school" did not substantially alter the nature of the plaintiffs' claim. * * *

 

Contrary to the defendants' contention, the power outage did not relieve them of their duty to address the allegedly dangerous condition created by the loss of power which may have obscured the mat from view ... . Moreover, the defendants failed to establish, prima facie, their entitlement to summary judgment on the ground that the rolled up mat was open and obvious, and not inherently dangerous as a matter of law ... . Lipani v Hiawatha Elementary Sch., 2017 NY Slip Op 06436, Second Dept 9-13-17

NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))/MANHOLE COVERS (SLIP AND FALL, NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT))

NEGLIGENCE, MUNICIPAL LAW.

NYC TRANSIT AUTHORITY RESPONSIBLE FOR MAINTENANCE OF AREA AROUND MANHOLE COVERS IN CITY SIDEWALKS, TRANSIT AUTHORITY'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined summary judgment should not have been granted to the NYC Transit Authority in this slip and fall case. The Transit Authority is responsible for the maintenance of manhole covers in city sidewalks. The evidence raised a question of fact whether the defect in the sidewalk was within the area around the manhole for which the Transit Authority is responsible:

Rules of City of New York Department of Transportation (34 RCNY) § 2-07(b) provides that owners of covers or gratings on a street, which includes the sidewalk, are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding surface ... . In support of its motion, the Transit Authority submitted, among other things, the plaintiff's notice of claim with photographs depicting the accident location, her testimony at a hearing held pursuant to General Municipal Law § 50-h, and her deposition testimony, which demonstrated that the alleged defective portion of the sidewalk was in close proximity to a manhole cover. Regardless of whether the Transit Authority owned the subject sidewalk, it failed to establish the absence of any triable issues of fact as to whether it owned the subject manhole cover or whether the plaintiff fell within the manhole cover owner's zone of responsibility ... . Nyack v City of New York, 2017 NY Slip Op 06445, Second Dept 9-13-17

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))

 

NEGLIGENCE, MUNICIPAL LAW, MEDICAL MALPRACTICE.

SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff's request for permission to serve a late notice of claim should have been granted. Plaintiff alleged medical malpractice in the treatment of cervical cancer. The Second Department found that the medical records themselves timely alerted the defendant municipal hospital (NHCC) to the nature of the malpractice claim. Therefore the hospital was not prejudiced by the delay in filing the notice of claim:

"Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury" ... . "Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim'" ... .

 

Here, in support of the petition, the decedent submitted medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice ... . Inasmuch as the medical records, upon independent review, suggested injury attributable to malpractice, they provided NHCC with actual knowledge of the essential facts constituting the claim ... . Furthermore, the petitioner made an initial showing that NHCC would not suffer any prejudice by the delay in serving a notice of claim, and NHCC failed to rebut the petitioner's showing with particularized indicia of prejudice ... . ... [T]he lack of a reasonable excuse is not dispositive where there is actual notice and absence of prejudice .... . Matter of Breslin v Nassau Health Care Corp., 2017 NY Slip Op 06440, Second Dept 9-13-17

 

REAL PROPERTY (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/DEEDS  (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/COVENANTS (DEEDS, COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))

 

REAL PROPERTY.

COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not have standing to enforce a covenant in an old deed prohibiting the construction of a commercial garage. The covenant was deemed to run only to the first purchaser, and did not run with the land:

... [T]he record establishes that the restrictive covenant from the 1924 deed was not part of a common development scheme created for the benefit of subdivision property owners as concerns the plaintiff and the defendants. ... At the time of the conveyance, the covenant cannot be said to have benefitted any part of the land burdened by it. ... When the land was conveyed to Hudson ... , at least as to the lots now owned by the plaintiff ..., it was still in a single piece, and Hudson, the absolute owner of it, was free to do with it as it pleased except as against ... the original covenantee ... . When Hudson decided to divide the property, neither of the deeds embodied any part of the restrictive covenant, or contained any reference thereto. Hudson is the common grantor of the parties, and it sold the property without restrictions. Neither the plaintiff nor [defendant] have any different title from that which they derived through the unrestricted deeds from Hudson ... . Thus, the original covenant is not enforceable as between the plaintiff and [defendant] ... . Fleetwood Chateau Owners Corp. v Fleetwood Garage Corp., 2017 NY Slip Op 06431, Second Dept 9-13-17

 

 

 

 

REAL PROPERTY (NYC, EXCAVATION DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NYC, EXCAVATION PROPERTY DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/EXCAVATION DAMAGE (REAL PROPERTY, NYC, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

 

REAL PROPERTY, MUNICIPAL LAW.

 

PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF'S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff had complied with the relevant regulations such that summary judgment was warranted in this excavation-damage action:

 

New York City Building Code ... § BC 3309.4 provides that "[w]henever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures, including but not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the soil or foundation work is to be made."

 

We have held that section 3309.4 imposes strict or absolute liability upon a " person who causes' an excavation to be made" ... . Nonetheless, on this record, the Supreme Court erred in granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability against [defendant], as the plaintiff failed to submit any evidence demonstrating that she granted [the defendant] the requisite license under section 3309.4 ... or, in the absence of a license, what, if any, actions the plaintiff took to satisfy her duty under section 3309.4 to protect and preserve her property ... . Chan v Begum, 2017 NY Slip Op 06425, Second Dept 9-13-17

 

 

 

WORKERS' COMPENSATION LAW (FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT))

WORKERS' COMPENSATION LAW.

 

FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT).

The Third Department determined the evidence did not support the Workers' Compensation Law Judge's (WCLF's) conclusion that the claimant was capable of performing light work. The matter was remitted:

 

... [N]one of the physicians who treated claimant's physical injuries rated him as having the functional ability to perform light work. To the contrary, they rated him as being able to perform less than sedentary work or sedentary work ... . The WCLJ, who was not a medical doctor, appears to have undertaken his own independent analysis of the medical evidence in concluding that claimant was capable of performing light work. Inasmuch as this was a significant factor that was considered in determining claimant's loss of wage-earning capacity, the WCLJ's finding that claimant sustained a 60% loss of wage-earning capacity, adopted by the Board, is not supported by substantial evidence in the record ... . Accordingly, the matter must be remitted for further proceedings to ascertain claimant's loss of wage-earning capacity in accordance with the 2012 Guidelines. Matter of Golovashchenko v Asar Intl. Corp., 2017 NY Slip Op 06500, Third Dept 9-14-17