Chapter Twenty-Three
Rochester, New York
Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)
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CIVIL PROCEDURE
Criteria for a Motion to Dismiss Based Upon Documentary Evidence and a Motion to Dismiss Supported by Submitted Evidence Explained (Not Met Here)
In finding defendant's motion to dismiss the complaint was properly denied, the Second Department explained the criteria for a motion to dismiss based upon documentary evidence, and for a motion to dismiss accompanied by the submission of evidence. The court noted that affidavits, deposition testimony and letters do not constitute "documentary evidence" in this context:
A party may move for judgment dismissing one or more causes of action asserted against it under CPLR 3211(a)(1) "on the ground that . . . a defense is founded upon documentary evidence." A motion on this ground, however, "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ... . "Neither affidavits, deposition testimony, nor letters are considered documentary evidence' within the intendment of CPLR 3211(a)(1)" ... . ...
... A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) ... . Nonetheless, it must be kept in mind that a CPLR 3211(a)(7) motion is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties ... . Moreover, "[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ... . Shofel v DaGrossa, 2015 NY Slip Op 08156, 2nd Dept 11-12-15
CIVIL PROCEDURE/MUNICIPAL LAW
Supreme Court Should Not Have Deemed a Verified Claim to Be a Summons and Complaint Under the Authority of CPLR 2001 (Allowing Correction of Mistakes in the Method of Filing)
Reversing Supreme Court, the Fourth Department determined that a verified claim filed by the plaintiff should not have been deemed a summons and complaint pursuant to CPLR 2001 (which allows correction or clarification of a mistake in the method of filing):
Plaintiff filed a verified claim in this action and, before answering, defendant filed a CPLR 3211 motion to dismiss, contending that plaintiff had "yet to file a Summons or a Complaint" and that "a complete failure to file is a jurisdictional defect." Relying upon CPLR 2001, Supreme Court deemed the claim to be a complaint and excused the failure to file a summons as "an irregularity that shall be disregarded in this case." That was error. We agree with defendant that CPLR 2001 does not permit a court to disregard the complete failure to file a summons, i.e., an initial paper necessary to commence an action ... . As recognized by the Court of Appeals in quoting from the Senate Introducer's Memorandum in support of the bill that amended CPLR 2001, the statute may be invoked as a basis to correct or clarify " a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED' "... . Fox v City of Utica, 2015 NY Slip Op 08267, 4th Dept 11-13-15
CIVIL PROCEDURE/MUNICIPAL LAW
Criteria for Mandamus to Compel Explained (Not Met Here)
The Second Department determined the county personnel director's ruling that community college employees would no longer be eligible for promotions to county jobs was rationally based on the terms of an agreement between the county and the college. In finding that the "mandamus to compel" petition was properly denied, the court explained the relevant criteria:
" The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated'" ... . "A discretionary act involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'" ... . Since the petitioner sought to compel conduct clearly involving the application of ... discretion and judgment ..., the remedy of mandamus is not available. Matter of Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08181, 2nd Dept 11-12-15
CRIMINAL LAW
Evidence Insufficient to Support Attempted Rape Conviction, Ordering Victim to Take Off Her Clothes, Without More, Was Not Enough
The Second Department determined the evidence did not support the attempted rape conviction. Although it could be inferred defendant intended to commit a sexual offense (he twice told the victim to take off her clothes), he never touched the victim, made a verbal demand for sex, or removed any of his clothes:
... [W]e find that it was legally insufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from her. After she told him twice that she had none, he yelled at her "take your clothes off." He then walked around the left side of the bed towards her, again yelled "take your clothes off," and pulled back her bed covers. After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant's clothes were removed.
Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) ... . People v Mais, 2015 NY Slip Op 08195, 2nd Dept 11-12-15
CRIMINAL LAW/EVIDENCE
Pedigree Question "Where Do You Reside," Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered
The Fourth Department ordered a new trial on the drug possession and drug paraphernalia counts. Defendant was convicted based upon a "constructive possession" theory (i.e., possession of contraband based upon defendant's dominion and control over the premises where the contraband is found). As police officers were conducting a search, and as defendant was handcuffed and lying on the floor, an officer asked defendant where he resided. Defendant answered "here." The People relied heavily on defendant's answer to prove constructive possession of contraband found on the premises. Under these circumstances, the pedigree question (where do you reside) was designed to elicit an incriminating response and, because the statement was "unwarned," the answer should have been suppressed:
Generally, a defendant's answer concerning his address, when "elicited through routine administrative questioning that [is] not designed to elicit an incriminating response" ... , will be considered pedigree information not subject to CPL 710.30 notice requirements even if the statement later proves to be inculpatory ... . That is "[b]ecause responses to routine booking questions—pedigree questions . . . —are not suppressible even when obtained in violation of Miranda [and, therefore, a] defendant lacks a constitutional basis upon which to challenge the voluntariness of his [or her] statement" ... . "[W]here there is no question of voluntariness, the People are not required to serve defendant with notice" ... .
As the Court of Appeals recognized, however, "the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case" (id.). Although the question concerning defendant's address appears to have been a facially appropriate question, we conclude that, under the circumstances of this case and, more specifically, under the circumstances in which the question was asked, the question was likely to elicit an incriminating admission and had a "necessary connection to an essential element of [the possessory] crimes charged" under Penal Law §§ 220.16 and 220.50 (2) ... . We agree with defendant that the error in admitting that statement cannot be considered harmless insofar as it relates to the possessory counts of the indictment inasmuch as the People relied heavily on that statement to establish defendant's constructive possession of the drugs and drug paraphernalia ... . People v Slade, 2015 NY Slip Op 08252, 4th Dept 11-13-15
CRIMINAL LAW/EVIDENCE
A court may issue an order to obtain corporeal evidence, such as blood or saliva, from a suspect where the People establish: "(1) probable cause to believe the suspect has committed the crime, (2) a clear indication' that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable" ... . In opposition to the People's motion, defendant conceded that the People had established the third factor. ... With respect to the remaining two factors, we conclude that the court properly granted the People's motion. Where, as here, the request was made after the defendant has been indicted, "the indictment provided the court with the requisite clear indication that probative evidence could be discovered from [the] buccal swab" ..., as well as the requisite "statutory authority and probable cause"... . People v Hogue, 2015 NY Slip Op 08254, 4th Dept 11-13-15
CRIMINAL LAW/EVIDENCE
Reversible Error to Admit Hearsay Statements Made by the Victim Four Years After the Alleged Incident Under the "Prompt Outcry" Exception to the Hearsay Rule
The Third Department ordered a new trial in a sexual assault case because hearsay testimony about what the victim said four years after the alleged assault was admitted under the "prompt outcry" exception to the hearsay rule (without any substantive explanation for the delay):
Whether a complaint is sufficiently prompt so as to fall within the exception is not a matter of precision and depends upon the facts of a given case ... . That being said, "courts traditionally have required the complaint to be made 'at the first suitable opportunity'" ..., and "[a]ny significant delay must be adequately explained" ... . Here, the victim did not disclose the abuse until 2011, four years after she and her sister were placed in the custody of her father and the abuse had ended. The victim testified that she waited so long to disclose the abuse because defendant had threatened to kill her if she told anyone, but that threat was made during a supervised visit between the victim and defendant. The visitation had ceased well before the disclosures were made, and the victim had neither seen nor spoken to defendant since 2009. We are left, in other words, with disclosures that were made four years after the abuse ended and over two years after the victim last interacted with defendant ... .
The People suggest that this prolonged delay can be attributed to the facts that the victim had sustained psychological trauma and suffered from a mild neurological impairment. Research indeed "suggest[s] that withholding a complaint may not be unusual," but that fact is not dispositive in assessing whether a complaint was made promptly ... . To hold otherwise would run against the very purpose of the exception, namely, to address "the tendency of some jurors to doubt the victim in the absence of" a prompt complaint of abuse ... . As for the victim's neurological condition, it suffices to say that no proof in the record suggests that it would have compelled her to remain silent for such a long period of time. Thus, given the absence of any adequate explanation for the victim's prolonged delay in disclosing the abuse, her disclosures cannot be described as prompt outcries, and the hearsay testimony regarding them should not have been admitted into evidence ... . Inasmuch as the evidence of guilt in this case was not overwhelming — indeed, the verdict hinged on the question of whether the victim was credible — we cannot say that the erroneous admission of this bolstering hearsay was harmless ... . People v Stone, 2015 NY Slip Op 08205, 3rd Dept 11-12-15
CRIMINAL LAW/EVIDENCE
Possession of Modest Amount of Drugs Is Not Sufficient to Make Out a Prima Facie Case of an Intent to Sell
The Fourth Department determined the defendant's possession of less than an ounce of drugs was not sufficient to make out a prima facie case of defendant's intent to sell:
We reject the People's contention that the evidence was sufficient to make out a prima facie case that defendant possessed the cocaine with the intent to sell it. Although "defendant's possession of a substantial' quantity of drugs can be cited as circumstantial proof of an intent to sell . . . , it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise" ... .Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it ... . People v Nellons, 2015 NY Slip Op 08305, 4th Dept 11-13-15
CRIMINAL LAW/EVIDENCE
Intoxication Jury Instruction Was Warranted, Conviction Reversed
In reversing defendant's conviction, the Second Department determined there was sufficient evidence of defendant's intoxication to warrant the intoxication jury instruction:
The defendant's convictions of assault in the second degree and criminal possession of a weapon in the fourth degree arise out of an incident during which the defendant allegedly struck another man (hereinafter the complainant) with a metal pipe in the presence of the complainant's wife. Viewing the intoxication evidence in the light most favorable to the defendant ..., we conclude, contrary to the Supreme Court's determination, that an intoxication instruction (see Penal Law § 15.25) was warranted ... . The complainant's wife testified that, just prior to the subject assault, she observed the defendant with a can of beer in his hand and that the defendant seemed drunk. She further testified that the defendant's breath smelled like beer, his speech was slurred, and that the defendant, with whom she was familiar, was "not himself." Under these circumstances, there is "sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis" ... . Accordingly, the Supreme Court erred in denying the defendant's request to give an intoxication instruction to the jury and, thus, reversal is warranted ... . People v Goldring, 2015 NY Slip Op 08189, 2nd Dept 11-12-15
CRIMINAL LAW/ATTORNEYS/EVIDENCE
Questioning by Police and Caseworker Violated Defendant's Right to Counsel, Failure to Suppress Statements Was Not Harmless Error
The Third Department reversed defendant's conviction (for murder of mother, stepfather and stepbrother) because defendant's "yeah probably" response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn't want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers' knowledge of the letter, they should have asked defendant directly whether he wanted the public defender's representation. In addition, a child protective caseworker's (MacNeil's) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:
... [T]he People contend that defendant's statement — namely, "Yeah, probably" — did not unequivocally invoke his right to counsel. We disagree. The word "probably" is defined as "very likely" or "almost certainly" (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where "probably" would mean "no," particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client's constitutional rights. Defendant's demeanor and tone when saying "Yeah, probably" was his simple expression, in everyday language, that he was not competent or capable to deal with the officers' questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant's statement was a request for counsel, requiring questioning without representation to cease .. . * * *
As it cannot be said that there is no reasonable possibility that the admission of defendant's statements at trial affected the jury's verdict, County Court committed reversible error in failing to suppress defendant's statements to the officers... . * * *
MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant's right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant's statements to MacNeil were involuntary and should have been suppressed ... . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15
CRIMINAL LAW
Probationers Do Not Lose All Privacy and Fourth Amendment Rights; Condition that Probationer Waive His Fourth Amendment Rights and Consent to the Search of His Home Struck
The Fourth Department determined the condition of probation requiring the probationder to consent to the search of his home, which was not part of the plea agreement, was not enforceable. A probationer does not lose all Fourth Amendment protections:
We agree with defendant ... that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment rights against a search of his home on the ground that it is related to defendant's "drug/alcohol abuse," inasmuch as that condition was not part of the plea agreement ... . We also agree with defendant that the condition does not relate to "the probationary goal of rehabilitation" and thus is not enforceable on that ground ... . Indeed, the presentence report indicated that the 51-year-old defendant, a first-time offender, does not have a history of drug or alcohol abuse and that he was not under the influence of drugs or alcohol at the time of the offense. It is well established that "a probationer's home is protected by the constitutional requirement that searches be reasonable . . . [A] probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both" ... . We therefore modify the judgment by striking as a condition of probation the requirement that defendant consent to the waiver of his Fourth Amendment rights against a search of his home. People v Mead, 2015 NY Slip Op 08304, 4th Dept 11-13-15
DEFAMATION/CORPORATION LAW
Libel Action Based Upon Allegedly False Impressions Created by an Article in an Online News Publication, Including the Allegedly False Context of a Quotation of Plaintiff's Own Words, Allowed to Go Forward; Pleading Requirements for Piercing the Corporate Veil Not Met.
The First Department, in a full-fledged opinion by Justice Kapnick, determined: (1) the complaint did not state a cause of action for libel per se (because extrinsic facts were necessary for a defamatory interpretation of the statement); (2) the libel cause action failed to sufficiently plead special damages (leave to replead granted); (3) the fact that one of the allegedly defamatory statements was in plaintiff's "own words" did not warrant dismissal; and (4) the complaint did not adequately allege that the publisher of the statements (Daily Holdings) was the alter ego of Rupert Murdoch's News Corporation. The opinion includes substantive discussions (which cannot be fairly summarized here) of defamation, falsity, libel per se, libel, special damages, the so-called "own words" defense, and the requirements for piercing the corporate veil. With respect to the plaintiff's twitter post which allegedly was used in a false context, the court discussed the so-called "own words defense:"
It is true that courts across the country have extended the "truth defense" to include an "own words" defense (see e.g., Thomas v Pearl, 998 F2d 447, 452 [7th Cir 1993] [holding that "(a) party's accurate quoting of another's statement cannot defame the speaker's reputation since the speaker is himself responsible for whatever harm the words might cause. . . . The fact that a statement is true, or in this case accurately quoted, is an absolute defense to a defamation action."]; Van Buskirk v Cable News Network, Inc., 284 F3d 977, 981-982 [9th Cir 2002] [applying the "own words" defense despite "contextual discrepancies" between the plaintiff's own words and the defendants' quotation of those words]; Johnson v Overnite Transp. Co., 19 F3d 392, 392 n1 [8th Cir 1994] [recognizing the "general rule that a defamation claim arises only from a communication by someone other than the person defamed"]; Smith v School Dist. of Philadelphia, 112 F Supp 2d 417, 429 [ED Pa 2000] [noting that "(g)enerally, a plaintiff can not (sic) be defamed by the use of his own words"]). Although defendants cite to Thomas v Pearl (998 F2d 447) in their brief, the parties failed to specifically address whether the "own words" defense should be adopted by this Court; and we are aware of no authority, in either New York State jurisprudence or in the Second Circuit, which either expressly accepts or rejects the "own words" defense. We are aware of only one case in the State, albeit a federal district court case, that even mentions the defense: Fine v ESPN (11 F Supp 3d 209, 224 [ND NY 2014]), in a section titled " Own Words' Defense," states that it cannot reach the issue because the records needed to compare the plaintiff's and the defendant's words were not properly before the court on a motion to dismiss. This highlights, however, the importance of a court's need to compare the two statements as they appear in the actual writings before applying the "own words" defense to dismiss a defamation claim. This is also evident from the fact that the "own words" defense derives from the "truth defense." Even if we were to adopt the "own words" defense, we find that it would not apply here where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader. Franklin v Daily Holdings, Inc., 2015 NY Slip Op 08139, 1st Dept 11-12-15
FAMILY LAW/EVIDENCE
Neglect Finding Cannot Be Based Upon Judicial Notice of a Drug Conviction
Reversing Family Court, the Second Department explained the pre-requisites for a neglect finding. Here Family Court erroneously made a neglect finding by taking judicial notice of mother's drug conviction:
Family Court Act § 1051(a) provides that the Family Court may enter an order finding that a child is an abused child or a neglected child on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing at which the petitioning agency establishes the allegations of abuse or neglect by a preponderance of the evidence (see Family Ct Act §§ 1044, 1046[b][i]). Further, in appropriate cases, the Family Court may also enter an order finding that a child is an abused child or a neglected child on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioning agency's prima facie showing of neglect or abuse as a matter of law, and the respondent's failure to raise a triable issue of fact in opposition to the motion ... .
Here, the Family Court did not enter the finding of neglect on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing (see Family Ct Act § 1051[a]). Moreover, the Family Court did not enter the finding of neglect upon a motion by the DSS for summary judgment ... . Thus, the Family Court, which simply took judicial notice at a conference of a certificate of disposition, lacked the authority to enter a finding of neglect. Matter of Vincent M. (Jamie M.), 2015 NY Slip Op 08170, 2nd Dept 11-12-15
FAMILY LAW/IMMIGRATION LAW
Motions for Findings Allowing Child to Petition for Special Immigrant Juvenile Status Should Have Been Granted
The Second Department, reversing Family Court, determined mother's motions for the issuance of special findings to enable the child [Jose] to petition for special immigrant juvenile status should have been granted:
... [I]t is declared that Jose ... has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court, and it is found that Jose ... is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to Honduras, his previous country of nationality or last habitual residence. Matter of Gomez v Sibrian, 2015 NY Slip Op 08165, 2nd Dept 11-12-15
DISCIPLINARY HEARINGS (INMATES)
State's Violation of Inmate Disciplinary-Hearing Due Process Rules Did Not Entitle Inmate to Summary Judgment In His Unlawful Confinement Action
The Fourth Department determined the Third Department's finding that the state violated inmate disciplinary-hearing (due process) rules did not entitle the inmate to summary judgment in his unlawful confinement action. The Third Department annulled the inmate's disciplinary determination based upon the state's (due process) rule violations. The inmate then sued the state for unlawful confinement (apparently based upon the discipline imposed by the annulled determination). The Fourth Department found that the state's rule violation merely removed the state's absolute immunity, allowing the unlawful confinement action to go forward. However, the inmate must prove all the elements of unlawful confinement to prevail. A question of fact remained on the "privilege" element:
It is well settled that, where, as here, the actions of correction personnel have violated the due process safeguards contained in 7 NYCRR parts 252 through 254, those actions "[will] not receive immunity" ... . Contrary to claimant's contention, however, the absence of an immunity defense does not entitle claimant to partial summary judgment on liability on his unlawful confinement cause of action. As defendant correctly contends, the "removal of immunity . . . does not result in absolute liability to defendant because claimant is still required to prove the merits of his claim" ... . "Where, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that Claimant was conscious of the confinement; (3) that Claimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged" ... . "In other words, not every violation of the rules and regulations governing the imposition of prison discipline will result in liability on the part of the State; the rule violations merely remove the cloak of absolute immunity and make the State potentially liable, if liability would be imposed under common law tort principles" ... .
Here, there is no dispute concerning the first three elements of the unlawful confinement cause of action, and the dispositive issue is whether claimant established as a matter of law that the confinement was not otherwise privileged. He did not. Moustakos v State of New York, 2015 NY Slip Op 08318, 4th Dept 11-13-15
LABOR LAW-CONSTRUCTION LAW
Injury Caused by Lifting a Heavy Beam Not Covered by Labor Law 240(1), Despite the Fact the Beam Was Resting on an Elevated Scaffold
The Second Department determined that plaintiff's injury was not related to the type of hazard covered by Labor Law 240(1). Plaintiff injured his back when he lifted a beam which was resting on an elevated scaffold. The court explained:
"[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" ... . Rather, the statute was designed to prevent accidents in which a protective device, " proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'" ... .
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of [the defendant's] motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). * * * ... [T]he plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site ... . The fact that the plaintiff was injured while lifting a heavy object does not give rise to liability pursuant to Labor Law § 240(1) ... . Cardenas v BBM Constr. Corp., 2015 NY Slip Op 08142, 2nd Dept 11-12-15
LANDLORD-TENANT
Payment of Rent Does Not Waive the Tenant's Right to Recover Rent Paid Based Upon the Landlord's Breach of the Covenant of Quiet Enjoyment
The Third Department noted that the tenant's paying of rent did not waive the tenant's right to recover rent payments made during the time an elevator was not yet installed. The lease agreement called for the installation of an elevator by March and it was not installed until November. The tenant was entitled to a return of the rent paid before the elevator was functioning based upon the landlord's breach of the covenant of quiet enjoyment:
The case law makes clear that a tenant's "payment of all required rent is a condition precedent to the maintenance of . . . an action" for breach of the covenant of quiet enjoyment ... . Hence, plaintiff's payment of rent during the months in question cannot be deemed to be a waiver of its rights under this portion of the lease. City of Troy, N.Y. v 1776 Sixth Ave., Troy, LLC, 2015 NY Slip Op 08236, 3rd Dept 11-12-15
MENTAL HYGIENE LAW/EVIDENCE
Frye Hearing to Determine Acceptance of Paraphilia NOS Diagnosis Required
The Second Department determined defendant sex offender's request for a Frye hearing in Mental Hygiene Law proceedings for civil commitment should have been granted. Defendant questioned the general acceptance in the psychiatric community of a "paraphilia NOS" diagnosis:
"[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field" ... . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS "is a controversial diagnosis," and that it had not yet decided "the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has gained general acceptance in the psychiatric community'" (id. at 186-187). However, the Court of Appeals declined to reach this issue in Matter of Donald DD. because no Frye hearing had been requested or held (id. at 187). Here, however, a Frye hearing was requested and the appellant supported his request with scientific literature. Under these circumstances, a Frye hearing should be conducted to resolve the question of whether the diagnosis of paraphilia NOS has achieved general acceptance in the psychiatric and psychological communities. Matter of State of New York v Richard S., 2015 NY Slip Op 08179, 2nd Dept 11-12-15
MENTAL HYGIENE LAW
Pedophilia Diagnosis, in Combination with Anti-Social Personality Disorder (ASPD), Substance Abuse Disorders, Failed Treatment and History of Sexual Misconduct, Constituted Sufficient Proof Respondent Had Serious Difficulty Controlling His Behavior Warranting Civil Commitment
The First Department, in a full-fledged opinion by Justice Richter, reversed Supreme Court (which had set aside the jury verdict) and determined civil commitment of respondent sex offender was supported by the evidence. The case is another attempt to interpret and implement the criteria for civil commitment laid out by the Court of Appeals in Matter of State of New York v Donald DD. (Kenneth T.), 24 NY 3d 174 (2014). The respondent here was diagnosed with pedophilia, which, combined with anti-social personality disorder (ASPD), substance abuse disorders, respondent's history of sexual misconduct, and his failure to benefit from treatment programs, was deemed sufficient proof respondent had difficulty controlling his behavior:
In Kenneth T., the State's expert testified that Kenneth T. suffered from paraphilia not otherwise specified (paraphilia NOS) and ASPD, and that, together, these disorders predisposed him to committing sexual misconduct and resulted in his having serious difficulty controlling that conduct. In concluding that Kenneth T. had the requisite serious difficulty, the expert identified two factors: the fact that Kenneth T. had carried out two rapes under circumstances allowing for identification by his victims, and the fact that he committed the second rape despite having spent significant time in prison for the earlier rape. In finding this evidence legally insufficient, the Court stated that the serious difficulty prong could rarely, if ever, be satisfied from the facts of a sex offense alone ... .
Here, in contrast, [the State's expert] did not solely rely on the facts of respondent's sex offenses in concluding that he had serious difficulty controlling his urges. Instead, Dr. [the expert] based his opinion on respondent's triple diagnosis (pedophilia, ASPD and substance abuse disorders), his pattern of sexual misconduct, and his abject failure to satisfactorily progress in treatment. Notably, the underlying sexual disorder in Kenneth T. was paraphilia NOS, not pedophilia. The distinction is critical because, unlike paraphilia, pedophilia can only be diagnosed where the individual has actually acted upon sexual urges towards prepubescent children (or has experienced significant distress at those urges) for more than six months. Thus, pedophilia, by definition, involves an element of difficulty in control. Further, the DSM-5 explicitly recognizes that the dangerous combination of respondent's ASPD and pedophilia increases the likelihood that he will act out sexually with children (see DSM-5 at 699). In addition, the diagnosis of respondent's substance abuse disorders, not present in Kenneth T., provides a further basis for the jury's finding of serious difficulty. * * *
By this decision, we do not hold that all offenders who suffer from pedophilia are automatically, by virtue of that diagnosis alone, subject to mandatory civil management. We simply hold that the State's evidence in this case — including respondent's multiple diagnoses, his history of sexual misconduct, his admitted inability to control his pedophilic urges, his lack of satisfactory progress in sex offender treatment and his failure to have a viable relapse prevention plan — was legally sufficient to uphold the jury's conclusion that respondent has difficulty controlling his sexually offending behavior. Matter of State of New York v Floyd Y., 2015 NY Slip Op 08102, 1st Dept 11-10-15
NEGLIGENCE/EVIDENCE
Post-Accident Surveillance Videos Properly Excluded from Trial, Videos Did Not Demonstrate "Habit" or "Routine Procedure" Which Rose to the Level of Admissible Circumstantial Evidence of the Cause of Ice Formation
The Second Department determined surveillance videos of defendant's employee dumping a bucket of water in a parking lot were properly excluded from the trial in this slip and fall case. The videos were made after plaintiff's fall. Plaintiff argued that the surveillance demonstrated a "habit" or "routine practice" which led to the forming of the ice which caused plaintiff to fall. The court explained the relevant criteria:
A party in a negligence case is permitted to introduce evidence of a habit or routine practice "to allow the inference of its persistence, and hence negligence on a particular occasion" ... . Nonetheless, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question ... . Here, as the Supreme Court pointed out, the earliest proffered instance of the purported "habit" occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. We agree with the court's determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured ... . Accordingly, the court did not improvidently exercise its discretion in precluding the proffered evidence. Gucciardi v New Chopsticks House, Inc., 2015 NY Slip Op 08146, 2nd Dept 11-12-15
REAL PROPERTY/TRUSTS AND ESTATES
Constructive Trust Properly Imposed on Real Property, Criteria Explained
The Second Department determined the defendant (Chen) was entitled to impose a constructive trust on real property for which she contributed money. The court explained the criteria:
"Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'" ... . "The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment" ... . While these factors are useful in many cases, the constructive trust doctrine is not rigidly limited ... . Thus, although the elements of a constructive trust must be proved by clear and convincing evidence ..., "[t]he constructive trust doctrine is given broad scope to respond to all human implications of a transaction in order to give expression to the conscience of equity and to satisfy the demands of justice" ... .
Here, the Supreme Court properly awarded judgment in favor of the defendant Al Ming Chen on her counterclaim to impose a constructive trust on the subject real property. Contrary to the plaintiff's contention, Chen offered evidence satisfying the elements generally needed for the imposition of a constructive trust. The plaintiff's contention that Chen never had any interest in the subject property, and therefore is not entitled to the imposition of a constructive trust, is without merit. Chen showed that she contributed money for the purchase of the subject property and for paying down the mortgage in reliance on an implied promise by the plaintiff that she shared an interest in the property ... . Moreover, Chen demonstrated that a constructive trust is necessary in this case to satisfy the demands of justice ... . Liu v Chen, 2015 NY Slip Op 08152, 2nd Dept 11-12-15