From This Week’s “Latest Posts” Section (Below):
Prosecutor to Prospective Jurors: “I Can Sleep at Night Because I Am No Longer a Defense Attorney.”
People v Stewart, 2024 NY Slip Op 04863, Fourth Dept 10-4-24
The Police Knew the Van Was Involved in a Prior Road Rage Shooting But Did Not Know Who Was Driving, Is the Traffic Stop Valid?
People v Zubidi, 2024 NY Slip Op 04824, First Dept 10-3-24
Two Contracts, Same Parties, One Written, One Oral, Does the Parol Evidence Rule Preclude Evidence of the Oral Contract?
Parizat v Meron, 2024 NY Slip Op 04776, Second Dept 10-2-24
When Is a Shorter Limitations Period in a Fire Insurance Policy Unfair and Unreasonable?
Filasky v Andover Cos., 2024 NY Slip Op 04545, Second Dept 9-25-25
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DEFENSE COUNSEL WAS DEEMED INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED PREJUDICIAL REMARKS MADE TO PROSPECTIVE JURORS (TO THE EFFECT “I CAN SLEEP AT NIGHT BECAUSE I AM NO LONGER A DEFENSE ATTORNEY”), AND FOR AGREEING TO THE JUDGE’S REQUEST TO HAVE THE TWO SIDES ALTERNATE GOING FIRST IN EXERCISING PEREMPTORY JUROR CHALLENGES (IN VIOLATION OF THE CRIMINAL PROCEDURE LAW) (FOURTH DEPT).
The Fourth Department, over a two-justice dissent, reversed defendant’s conviction on ineffective-assistance grounds. Defense counsel did not object to the prosecutor’s repeated statements to prospective jurors that he can sleep at night because he is a prosecutor and no longer a defense attorney. Defense counsel agreed to alter the statutory peremptory juror-challenge procedure, which requires that the People must exercise their peremptory challenges first. Defense counsel agreed to alternate which side went first:
The first error occurred during voir dire when defense counsel failed to object to patently improper comments from the prosecutor regarding his ability to sleep at night now that he is a prosecutor and no longer a defense attorney. Perhaps it was a legitimate strategy for defense counsel not to object to the first improper comment of that nature given that defense counsel may not have wanted to draw more attention to the prejudicial comment. For the same reason, defense counsel might be excused for not objecting when the prosecutor repeated the comment to the same group of prospective jurors. We can discern no legitimate strategy, however, for defense counsel to remain quiet when the prosecutor made the same comment for the third, fourth and fifth times during voir dire. At some point, defense counsel was obligated to protect defendant from the prejudice arising from the repeated acts of prosecutorial misconduct and, at the very least, request a curative instruction from the court.
Defense counsel also erred in not objecting—and, indeed, consenting—to the court’s unlawful procedure of having the parties alternate which side went first in declaring whether they wished to exercise a peremptory challenge to a particular prospective juror. CPL 270.15 (2) provides that the People “must exercise their peremptory challenges first and may not, after the defendant has exercised [the defendant’s] peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box.” After the court stated that its practice was to have parties alternate their exercise of peremptory challenges, defense counsel, evidently unaware of the statute’s mandate, said, “I’ll go first. He can go first. I don’t care.” As a result, on numerous occasions during voir dire defense counsel stated whether or not she was peremptorily challenging a prospective juror before the prosecutor was required to state his position.
Although the court’s violation of CPL 270.15 (2) does not constitute a mode of proceedings error, it was certainly prejudicial to defendant and we can conceive of no legitimate strategy for defense counsel’s acquiescence to the unlawful procedure. Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, “[o]ur review of this record indicates that defendant was not afforded meaningful representation and was therefore deprived of a fair trial” … . People v Stewart, 2024 NY Slip Op 04863, Fourth Dept 10-4-24
Practice Point: Although it is not a mode of proceedings error to alternate which side goes first in exercising peremptory challenges to prospective jurors in violation of the criminal procedure law, here defense counsel’s agreement to the procedure was deemed ineffective assistance of counsel and a new trial was ordered.
CRITERIA FOR AN EASEMENT BY NECESSITY EXPLAINED, NOT MET HERE; THE NECESSITY MUST EXIST AT THE TIME THE LANDLOCKED PARCEL WAS SEVERED; PROOF OF A FUTURE INTENT TO USE THE PARCEL FOR PERSONAL PARKING WAS DEEMED INSUFFICIENT (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined plaintiff did not satisfy the criteria for an easement by necessity for access to a landlocked parcel:
“[T]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and . . . that at the time of severance an easement over [the servient estate’s] property was absolutely necessary” … .
… [P]laintiff established that he had common ownership of the subject parcels at the time of severance. We agree with defendant, however, that, “inasmuch as the existence and extent of an easement by necessity is determined based on the circumstances as they existed at the time of severance” … , plaintiff failed to establish by clear and convincing evidence that the use and extent of a right-of-way he now seeks was “absolutely necessary” upon separation of title … . While plaintiff generally averred in his affidavit in support of his motion that he retained his landlocked parcel “for purposes of utilizing [the] space for personal parking needs,” any such statement of future intentions failed to establish the nature and extent of the access over the conveyed property that was “indispensable to the reasonable use for the [retained] property” upon severance of title … . Trusso v Brev519, LLC, 2024 NY Slip Op 04880, Fourth Dept 10-4-24
Practice Point: The “necessity” for an easement by necessity must be demonstrated to have existed at the time the landlocked parcel was severed. Proof of a future intent to use the parcel for personal parking was therefore deemed insufficient to support an easement by necessity.
THE ARBITRATOR’S INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT WAS NOT IRRATIONAL; THE AWARD MUST BE CONFIRMED EVEN WHERE THE COURT DISAGREES WITH THE INTERPRETATION (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined the arbitrator’s ruling that petitioner firefighters were entitled to paid emergency leave should have been confirmed. In recent weeks, the appellate courts across the state have been emphasizing the finality of an arbitrator’s award, even where the court might have decided the matter differently:
“[J]udicial review of arbitration awards is extremely limited” … . “The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA [collective bargaining agreement]” … . The court, however, lacks the authority to “examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one” … .
Here, the arbitrator merely interpreted and applied the provisions of the relevant CBA, as he had the authority to do … . We are powerless to set aside that interpretation even if we disagree with it … . Contrary to respondent’s urging, the arbitrator’s determination was not irrational; nothing in the CBA suggests that a request for emergency leave may not be made prior to the start of a tour of duty, and the arbitrator provided a justification for his determination … . Matter of Local 32, Intl. Assn. of Fire Fighters, A.F.L.-C.I.O.-C.L.C. (City of Utica), 2024 NY Slip Op 04878, Fourth Dept 10-4-24
Practice Point: The appellate courts are making it clear that an arbitrator’s award should not be tampered with by the courts as long as the arbitrator has not exceeded his or her powers.
INFANT PLAINTIFFS ALLEGED MULTIPLE INSTANCES OF SEXUAL MISCONDUCT BY A MALE STUDENT ON THE SCHOOL BUS FROM KINDERGARTEN THROUGH SECOND GRADE; THE FOURTH DEPARTMENT DETERMINED THE DEFENDANT SCHOOL’S EVIDENCE DID NOT CONCLUSIVELY ESTABLISH A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined the negligent supervision causes of action against the defendant school, school district, board of education and department of transportation should not have been dismissed. Infant plaintiffs alleged they were subjected to sexual misconduct on a school bus by a male student from kindergarten through second grade. The Fourth Department found that the evidence submitted by the defendants did not demonstrate a lack of notice:
Defendants, as parties moving for summary judgment, had the initial burden of establishing as a matter of law that they lacked actual or constructive notice of “the dangerous conduct which caused injury” … . Here, we conclude that defendants did not meet that burden. In support of their motion, defendants submitted, inter alia, the deposition testimony of the principal of the school at the time of the alleged misconduct. The principal, when asked at his deposition whether he had been aware of any prior “incidents of student sexual assaults” on the bus and whether he had ever had to deal with any student at the school who had been characterized as “sexually violent,” answered both questions in the negative … . That testimony was insufficient to meet defendants’ burden because it failed to address whether the principal knew of incidents within the broader category of sexual misconduct alleged by plaintiffs in their complaints. Plaintiffs alleged that the perpetrator engaged in a wide range of sexual misconduct—some of which was not equivalent to “sexual assault [ ]” and was not “sexually violent.” In short, the principal’s testimony failed to establish that defendants had no actual or constructive notice of any sexual misconduct of the types alleged by plaintiffs … .
Additionally, to the extent that defendants submitted deposition testimony of various other witnesses—including the infant plaintiffs and the bus driver—we conclude that it was insufficient to satisfy defendants’ initial burden with respect to actual or constructive notice. In particular, although the infant plaintiffs and the bus driver testified that they did not report instances of the alleged misconduct to defendants, they were not in a position to know whether there had been prior incidents of sexual misconduct involving the perpetrator and, if so, whether defendants had actual or constructive notice of any of those incidents prior to the sexual misconduct alleged in the complaint … . Their testimony could not establish whether defendants obtained notice by other means … . Porschia C. v Sodus Cent. Sch. Dist., 2024 NY Slip Op 04885, Fourth Dept 10-4-24
Practice Point: Here, on defendant school’s motion for summary judgment in this negligent supervision case, the Fourth Department looked carefully at the school’s evidence of a lack of notice of a student’s sexual misconduct and found the evidence did not address all the possible scenarios which could demonstrate liability and therefore did not support summary judgment.
DEFENDANT WAS CHARGED WITH PREDATORY SEXUAL ASSAULT AGAINST A CHILD, A CLASS A-II FELONY PUNISHABLE BY A MANDATORY MAXIMUM TERM OF LIFE IMPRISONMENT; PURSUANT TO CRIMINAL PROCEDURE LAW 195.10[1][B] DEFENDANT CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION (SCI) (THIRD DEPT).
The Third Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), determined defendant could not waive indictment to an A felony for which a life sentence is available:
CPL 195.10 provides, in relevant part, that a defendant may waive indictment and consent to be prosecuted pursuant to an SCI where “the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1] [b] …). Predatory sexual assault against a child is a class A-II felony and “is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment” (… Penal Law §§ 70.00 [2] [a]; 130.96). Hence, consistent with both CPL 195.10 and prevailing case law, a waiver of indictment “is not available where the defendant is charged with a class A felony” … . Defendant’s waiver of indictment was therefore “expressly prohibited under CPL 195.10 and . . . invalid, rendering the resulting procedure employed to procure defendant’s guilty plea unauthorized” … . Accordingly, defendant’s guilty plea must be vacated and the SCI dismissed … . People v White, 2024 NY Slip Op 04850, Third Dept 10-3-24
Practice Point: A defendant cannot waive indictment and plead to a superior court information (SCI) when charged with an A-II felony punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment.
THE FACT THAT THE POLICE WERE AWARE THE VAN THEY STOPPED HAD REPORTEDLY BEEN INVOLVED IN TWO PRIOR INCIDENTS—(1) A ROAD RAGE SHOOTING AND (2) NEARLY RUNNING OVER A TRAFFIC AGENT ABOUT TO ISSUE A PARKING TICKET—PROVIDED REASONABLE SUSPICION SUPPORTING THE LEVEL THREE TRAFFIC STOP, DESPITE THE FACT THE POLICE DID NOT KNOW WHO WAS DRIVING THE VAN DURING THE PRIOR INCIDENTS (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice O’Neill, affirming defendant’s conviction, over an extensive dissent, determined the police had reasonable suspicion supporting a level three traffic stop. The registration number of the van defendant was driving had been the subject of police reports for two prior incidents, a road rage incident during which a firearm was discharged, and nearly running a traffic agent over when the agent was about to place a parking ticket on the van. When the van was stopped, the driver was asked to step out of van because of the firearm incident. Defendant refused to get out and picked up a firearm. One of the officers tased the defendant three times and he was arrested:
A forceable stop and detention is authorized “[w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor” … .
“Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” … .
Here, before stopping the van, the BOLO [be-on-the-lookout] alert notified Officers Amaral and Stokes of the criminal activity involving the van on April 28th; the officers were also aware of the May 17th incident because they both responded to the traffic enforcement agent’s call for backup. The officers’ knowledge of either incident alone furnished reasonable suspicion of criminal activity at hand … . People v Zubidi, 2024 NY Slip Op 04824, First Dept 10-3-24
Practice Point: Here the fact that defendant’s van had reportedly been involved in a road rage shooting and had nearly run over a traffic agent about to issue a parking ticket provided reasonable suspicion justifying a level three traffic stop, despite the fact that the identity of the driver involved in the prior incidents was not known at the time of the stop.
THE EXISTENCE OF A WRITTEN CONSULTING AGREEMENT BETWEEN THE PARTIES RELATING TO SALES AND MARKETING DID NOT, PURSUANT TO THE PAROL EVIDENCE RULE, PRECLUDE EVIDENCE OF AN ALLEGED ORAL AGREEMENT BETWEEN THE SAME PARTIES RELATING TO THE FORMATION AND OWNERSHIP OF A BUSINESS (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the counterclaim for breach of an oral contract should not have been dismissed. The court explained when the parol evidence rule does not exclude evidence of an oral contract. Here there was a written consulting agreement for defendant’s marketing and sales services. The alleged oral agreement related to the formation and ownership of a company (ION):
… ” … [A] written agreement does not exclude proof of a parol collateral agreement made even between the same parties, where the written contract is not intended to embody the whole agreement and does not on its face purport to cover completely the subject-matter of the alleged collateral agreement” … . For a prior oral agreement to be enforceable, “(1) the agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) it must be one that parties would not ordinarily be expected to embody in the writing; or put in another way, an inspection of the written contract, read in the light of surrounding circumstances must not indicate that the writing appears to contain the engagements of the parties, and to define the object and measure the extent of such engagement. Or again, it must not be so clearly connected with the principal transaction as to be part and parcel of it” … .
Here, the consulting agreement did not completely cover the same subject matter as the alleged oral agreement, as the alleged oral agreement related to the formation and ownership of ION and the consulting agreement only related to the compensation that Ovadia [defendant] would receive for performing certain marketing and sales services … . Further, the alleged oral agreement did not vary, alter, or supplement any terms of the consulting agreement, which did not address ownership interests in ION … . Moreover, it would not ordinarily be expected that the subject matter of the alleged oral agreement would be addressed in the consulting agreement … . Parizat v Meron, 2024 NY Slip Op 04776, Second Dept 10-2-24
Practice Point: Consult this decision for a clear explanation of the application of the parol evidence rule. Here evidence of an alleged oral contract between the parties was not precluded by the existence of a written consulting agreement because the two agreements covered different subjects and the terms did not conflict.
SUPREME COURT’S VACATION OF THE ARBITRATION AWARD AS “IRRATIONAL” REVERSED, CRITERIA EXPLAINED (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined the arbitrator’s award should not have been vacated as “irrational.” Petitioner, a registered nurse, did not take her first dose of the COVID vaccine by the deadline imposed by her employer. She was suspended and requested an arbitration in accordance with the collective bargaining agreement (CBA). The arbitrator found that failure to take the vaccine was misconduct and petitioner’s employment was terminated:
A court’s authority to vacate an arbitrator’s award is limited to the grounds set forth in CPLR 7511 (b), which permits vacatur of an award where the arbitrator, as relevant here, “exceed[s] [their] power” … by issuing an ” ‘award [that] violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” … .
Where … the parties agree to submit their dispute to an arbitrator pursuant to a collective bargaining agreement, “[c]ourts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice” … . * * *
… [T]he court erred in vacating the award on the ground that it was irrational. ” ‘An award is irrational if there is no proof whatever to justify the award’ ” … . Where, however, “an arbitrator ‘offer[s] even a barely colorable justification for the outcome reached,’ the arbitration award must be upheld” … . Here, inasmuch as it was undisputed that SUNY Upstate directed petitioner to receive the vaccine by a date certain, that it apprised her that her continued employment was dependent upon her compliance, and that petitioner refused to be vaccinated by the required date, the court erred in concluding that the arbitrator’s award was irrational. Matter of Spence (State Univ. of N.Y.), 2024 NY Slip Op 04677, Fourth Dept 9-27-24
Practice Point: If there is “even a barely colorable justification” for an arbitrator’s award, the courts won’t tamper with it. Here a nurse lost her job because she wouldn’t take the COVID vaccine. The COVID vaccine regulation which was the basis for the misconduct charge against petitioner was repealed just before the arbitrator decided the matter, but the repeal was not considered by the arbitrator. Because there was a valid basis for the arbitrator’s award, it could not be vacated as “irrational.”
THE PARTY WHO BROUGHT THE WRONGFUL DEATH ACTION WAS NOT A PERSONAL REPRESENTATIVE OF DECEDENT’S ESTATE AND THEREFORE DID NOT HAVE STANDING; BECAUSE THE PARTY HAD NO RIGHT TO SUE, “SUBSTITUTION” OF THE EXECUTORS FOR THAT PARTY WAS NOT AVAILABLE (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined (1) plaintiffs’ cross-motion to substitute the executors of decedent’s estate for plaintiffs should not have been granted, and (2) defendants’ motion to dismiss the complaint for lack of standing should have been granted. The plaintiff who purportedly brought the wrongful death action (a “proposed” executor) was not a “personal representative” under the Estates, Powers and Trusts Law (EPTL). Therefore, “substitution” of the executors for the plaintiff was not possible:
… [A]s a “[p]roposed” executor who had not obtained letters to administer decedent’s estate, plaintiff was not a personal representative within the meaning of the Estates, Powers and Trusts Law at the time the action was commenced and thus did not have standing to commence an action on behalf of decedent’s estate … . Thus, we agree with defendants that Supreme Court erred in granting plaintiff’s cross-motion to substitute as plaintiffs the executors of decedent’s estate inasmuch as “[s]ubstitution . . . is not an available mechanism for replacing a party . . . who had no right to sue with one who has such a right” … .
We … agree with defendants that the court erred in denying that part of their motion seeking to dismiss the complaint on the ground that the action was brought by a party without standing … . Cappola v Tennyson Ct., 2024 NY Slip Op 04672, Fourth Dept 9-27-24
Practice Point: Only a “personal representative” of a decedent’s estate has standing to sue on behalf of the decedent Here the suit was brought by a party who had not obtained letters to administer the estate and therefore did not have standing. “Substitution” of the executors for a party without standing is not possible.
THE PORTION OF THE CORRECTION LAW WHICH REQUIRED DEFENDANT BE DESIGNATED A “SEXUALLY VIOLENT OFFENDER,” BASED UPON AN OHIO TELEPHONE-SOLICITATION OFFENSE WHICH DID NOT INVOLVE VIOLENCE, IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).
The Fourth Department, reversing County Court, over a dissent, determined the portion of “Correction Law § 168-a (3) (b), which defines a ‘sexually violent offense’ as a ‘conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred'” is unconstitutional as applied to defendant. Defendant pled guilty to an Ohio offense which prohibits “soliciting” a person 13 to 15 years old by telephone. Violence is not an element of the Ohio offense:
… [W]e conclude that defendant established that he is an “individual[ ] . . . for whom the [sexually violent] offender designation ‘is unmerited’ ” … because the out-of-state conviction was “not sexual[ly violent] in nature and his conduct provides no basis to predict risk of future sexual[ly violent] harm” … . * * *
… [W]e conclude that, as applied to him, the designation of defendant as a sexually violent offender pursuant to the second disjunctive clause of Correction Law § 168-a (3) (b) “unconstitutionally impacts defendant’s liberty interest in a criminal designation that rationally fits his conduct and public safety risk” … . People v Brightman, 2024 NY Slip Op 04654, Fourth Dept 9-27-24
Practice Point: Here the Correction Law required that defendant be designated a “sexually violent offender” based on an Ohio conviction for telephone solicitation of a person between 13 and 15 which did not involve violence. That portion of the Correction Law was deemed unconstitutional as applied to the defendant.
DEFENDANT PLED GUILTY TO THE SEXUAL ABUSE OF HIS GIRLFRIEND’S DAUGHTER; THE GIRLFRIEND ALLEGED SHE WAS UNABLE TO WORK BECAUSE OF THE RESULTING STRESS AND SOUGHT RESTITUTION FOR UNPAID RENT AND HOUSEHOLD EXPENSES; THE CLAIM FOR LOST WAGES WAS NOT DIRECTLY CAUSED BY DEFENDANT’S OFFENSES (FOURTH DEPT).
The Fourth Department modified the judgment by eliminating the restitution aspect of the sentence. The ordered restitution was not directly caused by defendant’s offenses. Defendant pled guilty to sexual abuse of his girlfriend’s daughter:
The girlfriend requested restitution for the unpaid balance of rent for the house she had shared with defendant and for a bill for garbage and recycling collection that was not yet due. The People argued that the girlfriend was entitled to restitution for those expenses because, according to the girlfriend’s statements, defendant’s offenses caused the victim emotional and psychological harm and caused the girlfriend stress that resulted in serious health issues and several hospitalizations, all of which rendered her unable to work, thereby ultimately resulting in financial hardship and her inability to pay the claimed household expenses. The court, over defense counsel’s objection that the claimed expenses were not directly caused by defendant’s offenses, imposed the requested restitution. That was error.
“Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to ‘make restitution of the fruits of [their] offense or reparation for the actual out-of-pocket loss caused thereby’ ” … . Restitution and reparation may be required for expenses that “were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime” … . Conversely, the statute “does not impose a duty on the defendant to pay for the costs associated [ ]with . . . expenses [that] are not directly caused by the defendant’s crime” … .
Here, we conclude that the claimed expenses do not constitute “actual out-of-pocket loss caused” by defendant’s offenses (Penal Law § 60.27 [1]) inasmuch as the girlfriend’s unpaid rent and utility bill are costs “not directly caused by . . . defendant’s crime[s]” … . Contrary to the People’s assertion, the girlfriend’s request did not constitute a claim for lost wages directly caused by defendant’s offenses … . People v Figueroa, 2024 NY Slip Op 04691, Fourth Dept 9-27-24
Practice Point: Restitution applies only to expenses or losses “directly caused by defendant’s offenses.” Here defendant pled guilty to sexual abuse of his girlfriend’s daughter. The girlfriend alleged she could not work because of the resulting stress and was unable to pay her rent. That loss was not “directly caused by defendant’s offenses” and, therefore, restitution was not available for the girlfriend’s lost wages.
THE SENTENCING JUDGE MUST “PRONOUNCE SENTENCE ON EACH COUNT;” MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).
The Fourth Department affirmed defendant’s conviction but noted that the judge should have “pronounced sentence on each count” and remitted the matter for resentencing:
… [T]he court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20 …). Although the uniform sentence and commitment form states that defendant was sentenced on each count to concurrent terms of incarceration of five years with three years of postrelease supervision, the court in fact did not “impose a sentence for each count of which defendant was convicted” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. People v Gause, 2024 NY Slip Op 04686, Fourth Dept 9-27-24
Practice Point: Sentence must be “pronounced on each count.”
THE APPELLATE COURTS HAVE THE “INTEREST OF JUSTICE” POWER TO REDUCE AN OTHERWISE LEGAL AND APPROPRIATE SENTENCE WHEN THE DEFENDANT IS SERIOUSLY MENTALLY ILL; HERE THE MAJORITY CHOSE NOT TO REDUCE THE SENTENCE; A STRONG TWO-JUSTICE DISSENT ARGUED FOR A REDUCTION (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Shulman, over an extensive two-justice dissent, affirmed defendant’s conviction by guilty plea to attempted murder and declined to reduce the eight-year sentence in the interest of justice. Defendant is seriously mentally ill and has endured almost indescribable hardships throughout his life, which are detailed in the dissent. The underlying question here is, given the prison system’s inability to properly care for the seriously mentally ill, should the appellate court exercise its power to reduce this defendant’s sentence in the interest of justice. The majority answered “no” and the dissent argued “yes.” The opinion is far too detailed to fairly summarize here:
From the dissent:
… [R]esearch … demonstrates that people with serious psychiatric needs are more likely to be violently victimized and housed in segregation while in prison. That research also shows that the vast majority of people with mental illness in jails and prisons do not receive care, and for those that do, the care is generally inadequate.… This is of particular concern given [defendant’s] history of suicide attempts … .
This case raises an important question: What is the utility of extended incarceration under the present circumstances? Specifically, where, among other things, the offense occurred during a time when [defendant] had been unmedicated for five days and, moreover, the record suggests—as evidenced by [defendant’s] comments to the police when arrested and a subsequent mental examination—that his severe mental illness contributed to what is his first and only criminal conviction. People v Paulino, 2024 NY Slip Op 04625, First Dept 9-26-24
Practice Point: The appellate courts have the “interest of justice” power to reduce an otherwise appropriate sentence based upon a defendant’s mental illness.
A SAFE ON A HIGH SHELF IN A HOTEL ROOM FELL ON PLAINTIFF; DEFENDANT HOTEL DID NOT ADDRESS WHEN THE SAFE WAS LAST INSPECTED; THEREFORE THE HOTEL DID NOT SHOW IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE SAFE (FIRST DEPT).
The First Department, reversing Supreme Court, determined defendant did not sufficiently demonstrate a lack of constructive notice of the allegedly dangerous condition—a 40-t0-60-pound safe which fell from a high shelf in a hotel-room closet, apparently because it was not securely attached to the wall:
Plaintiff commenced this personal injury action after a 40-to-60-pound safe fell on him while he was staying at defendant hotel in January 2022. In moving for summary judgment, defendant failed to meet its prima facie burden that it neither created nor had actual or constructive notice of the dangerous condition by submitting evidence that the room was inspected two years earlier. The inspection report did not have probative value because it was performed two years before plaintiff’s accident, and failed to provide any specific details as to the inspection so as to establish defendant’s lack of notice … . Defendant did not address how often the hotel safes were inspected, and what, if any, steps were taken to ensure that a safe, which in this case was placed on a high closet shelf, remained securely affixed to the wall … . Here, a physical inspection of the in-room safe would have been reasonable and revealed whether the safe was firmly secured to the wall … . Swallows v W N.Y. Times Sq., 2024 NY Slip Op 04629, First Dept 9-26-24
Practice Point: A defendant’s motion for summary judgment in a premises liability case must demonstrate when the area or object in question was last inspected and found safe. A motion that does not address that issue fails to show a lack of constructive notice of the condition and will be denied.
IN THIS CHILD VICTIMS ACT CASE, LONG-ARM JURISDICTION WAS PROPERLY EXERCISED OVER AN OUT-OF-STATE CATHOLIC DIOCESE WHICH EMPLOYED DEFENDANT PRIEST WHO WAS ASSIGNED TO A NEW YORK PARISH (FIRST DEPT).
The First Department, reversing Supreme Court, determined the Diocese of Burlington (apparently an out-of-state party) has sufficient contact with New York to warrant the exercise of long-arm jurisdiction in this Child Victims Act case. It was alleged the Diocese of Burlington employed the defendant priest and assigned him to a parish in New York with actual knowledge of the priest’s history of sexually abusing children:
Accepting as true the facts alleged … , plaintiff has made a prima facie showing that Diocese of Burlington is subject to personal jurisdiction under CPLR 302(a)(1) … . Plaintiff alleges that Diocese of Burlington exercised supervision and control over the Priest, placing him on an indefinite, long-term assignment in New York to provide Catholic clergy services to parishioners in New York, including plaintiff even though it knew that he was a sexual predator. Plaintiff also alleges that during this period and in connection with those priestly duties, the Priest sexually assaulted plaintiff on multiple occasions. Therefore, plaintiff adequately alleges that Diocese of Burlington engaged in “purposeful activity” in New York, and that there is a “substantial relationship between the transaction and the claim asserted” …… .
Further, “the exercise of long-arm jurisdiction over defendants per CPLR 302(a)(1) comports with due process, as it must” … . For the reasons stated, “plaintiff adequately alleged Diocese of Burlington’s ‘minimum contacts’ with New York, in the form of their purposeful availment of the privilege of conducting activities here, thus invoking the protections and benefits of New York’s laws” … . Diocese of Burlington “failed to present a compelling case that some other consideration would render jurisdiction unreasonable” … . V.Z. v Roman Catholic Diocese of Burlington, 2024 NY Slip Op 04631, First Dept 9-26-24
Practice Point: Here in this Child Victim’s Act case, an out-of-state Catholic Diocese employed a priest who was assigned to a New York parish. It was alleged the Diocese had actual knowledge of the priest’s history of sexually abusing children. The Diocese was subject to New York’s long-arm jurisdiction.
DEFENDANT WAS ENTITLED TO NOTICE COUNTY COURT INTENDED TO RELY ON FAMILY COURT RECORDS WHEN CONSIDERING DEFENDANT’S APPLICATION FOR RECLASSIFICATION AS A LEVEL-ONE SEX OFFENDER; THE THIRD DEPARTMENT NOTED THAT THE PROPER INQUIRY IS WHETHER RECLASSIFICATION IS WARRANTED BY A CHANGE IN CONDITIONS, NOT WHETHER THERE IS SUPPORT FOR THE INITIAL LEVEL-TWO CLASSIFICATION (THIRD DEPT).
The Third Department, reversing County Court, determined defendant was entitled to be notified of County Court’s intention to rely on Family Court records in considering defendant’s application to be reclassified as a level one sex offender. The matter was remitted for a new hearing:
Upon his release from incarceration in 2003, defendant was classified as a risk level two sex offender and designated a sexually violent offender. In 2020, defendant applied, for the fifth time, for a modification of his risk level classification pursuant to Correction Law § 168-o (2), seeking to be reclassified as a risk level one sex offender as his conditions have changed subsequent to the initial risk level classification given, among other things, that he has remained arrest free, successfully completed sex offender treatment while incarcerated and gained custody of his daughter, which helped him understand the impact of his underlying criminal actions. * * *
In discrediting defendant’s sworn statements in support of his application and in finding his statements to be misleading, County Court relied heavily upon various Family Court proceedings, including neglect proceedings as far back as 2012, and a family offense petition containing allegations against defendant [*2]that were subsequently withdrawn. The court detailed the allegations in the petitions, finding that the allegations contradicted defendant’s sworn statements in his application and that, by excluding such information from his sworn affidavit, defendant attempted to mislead the court. Defendant was not given an opportunity to respond to or defend himself against consideration of such information. * * *
… Contrary to County Court’s finding here, the proper level of review is not whether there is clear and convincing evidence to support defendant’s initial risk level classification, but rather, whether defendant has met his burden of establishing by clear and convincing evidence that a modification of his risk assessment level is warranted based upon a change in conditions. People v Johns, 2024 NY Slip Op 04640, Third Dept 9-26-24
Practice Point: In a SORA risk-level assessment proceeding, a defendant is entitled to timely notice of the court’s intention to rely on additional information of which defendant had not been made aware, here Family Court records.
Practice Point: When a defendant applies for reclassification of his sex offender risk level status (here from level two to level one), the court’s inquiry should be confined to whether a change in conditions warrants reclassification, not whether the original classification was justified.
COUNTY COURT, SUA SPONTE, IN GRANTING THE PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE, RELIED ON FACTORS ABOUT WHICH THE DEFENDANT WAS NOT NOTIFIED BEFORE THE SORA HEARING; MATTER REMITTED FOR A NEW HEARING AFTER PROPER NOTICE (THIRD DEPT).
The Third Department, reversing County Court, determined the SORA court should not have, sua sponte, relied on factors for which defendant was not provided notice in granting the People’s request for an upward department. The matter was remitted:
County Court sua sponte relied upon certain additional factors for which defendant was not provided any notice — namely, that the points assessed under factor 4 did not adequately account for defendant’s prolonged course of conduct that continued over 21 months; that defendant was not scored any points under factor 7, which did not take into account defendant’s relationship with the mother of the victim that was arguably established or promoted for the primary purpose of victimizing the mother’s child; and that defendant’s psychiatric conditions and history increase his risk of reoffending.
With regard to these three additional areas of concern noted by County Court, “defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which County Court would rely in considering that relief … . “As defendant did not have notice or a fair opportunity to present arguments and evidence pertaining to those factors in the context of whether upward departure from the presumptive classification was warranted, the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People [and/or court] specific to their request for such relief” … . People v Furgeson, 2024 NY Slip Op 04644, Third Dept 9-26-24
Practice Point: A defendant is entitled to prior notice of the factors which will be considered by the court during a SORA risk-level assessment proceeding.
A DEFENDANT, AS PART OF A NEGOTIATED PLEA AGREEMENT, MAY WAIVE A HEARING SEEKING A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Dowling, affirming defendant’s sentence after a guilty plea, determined that a hearing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) seeking a reduced sentence can be waived. Therefore defendant’s negotiated plea agreement, which required her waiver of a DVSLA hearing, was valid:
… Penal Law § 60.12 contains no language requiring a sentencing court to hold a DVSJA hearing in every case containing allegations that the defendant is a victim of domestic violence, regardless of whether a hearing was requested, prior to announcing sentence. A defendant wishing to avail himself or herself of the possibility of a reduced sentence must instead request a DVSJA hearing to determine his or her eligibility before the sentencing court … . Where a DVSJA hearing is held, Penal Law § 60.12 provides that the court “may” apply the alternative sentencing scheme if the stated factors are established by the defendant. This permissive language reflects the Legislature’s intent that sentencing under Penal Law § 60.12 be an option exercised in the sentencing court’s discretion … . People v Hudson, 2024 NY Slip Op 04571, Second Dept 9-25-24
Practice Point: As part of a negotiated plea agreement, a defendant may waive a DVSJA reduced-sentence-eligibility hearing.
A PRIVILEGE LOG WHICH IDENTIFIES WITHHELD DOCUMENTS BY CATEGORY INSTEAD OF INDIVIDUALLY VIOLATES CPLR 3122 (B) (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendants did not comply with the privilege-log requirements of CPLR 3122(b). The defendants did not identify each withheld document individually, instead identifying only categories of documents:
Pursuant to CPLR 3122(b), “[w]henever a person is required . . . to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required . . . to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document.”
Here, the defendants did not comply with the requirements of CPLR 3122(b), as their privilege log failed to individually identify each type of document being withheld, the general subject matter of each document, and the date of each document … . Contrary to the defendants’ contention, Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70 [g]) rule 11-b(b) does not authorize the defendants’ unilateral use of categorical designations in their privilege log, absent an agreement by the parties to employ a categorical approach or the issuance of a protective order … . Joseph v Rassi, 2024 NY Slip Op 04548, Second Dept 9-25-24
Practice Point: Absent an agreement or a court order, a privilege log which identifies withheld documents by category rather than individually violates CPLR 3122 (b).
THE SHORTER LIMITATIONS PERIOD IN THE FIRE INSURANCE POLICY WAS NOT FAIR AND REASONABLE; THE MOTION TO DISMISS IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court in the fire-insurance breach of contract case, determined the contractual limitations period in the insurance policy was not fair and reasonable:
“Article 2 of the CPLR (‘Limitations of Time’), provides that ‘[a]n action . . . must be commenced within the time specified in this article unless . . . a shorter time is prescribed by written agreement'” … . “‘[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable'” … . “‘[T]he period of time within which an action must be brought . . . should be fair and reasonable, in view of the circumstances of each particular case. . . . The circumstances, not the time, must be the determining factor'” … . “‘Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … .
The Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint. Contrary to the defendants’ contentions, the modified limitations period in the subject insurance policy was not fair and reasonable. The insurance policy provided that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss” and that “[w]e will pay no more than the actual cash value of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss.” Here, the one-year limitation was unreasonable since the condition precedent, completion of actual repair or replacement, was not within the plaintiffs’ control and could not be met within that period … . “‘A “limitation period” that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim'” … . Filasky v Andover Cos., 2024 NY Slip Op 04545, Second Dept 9-25-25
Practice Point: Parties can agree on shorter limitations periods. Here the limitations period in the subject fire insurance policy expired before suit could be brought rendering it unfair, unreasonable and unenforceable.
THE PROPERTY IS OWNED BY AN LLC; ALTHOUGH THE PARTIES TO THE PARTITION ACTION ARE EQUAL MEMBERS OF THE LLC, MEMBERS HAVE NO INTEREST IN THE SPECIFIC PROPERTY OF AN LLC; THEREFORE THE PARTITION ACTION WAS NOT AVAILABLE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the partition action could not be maintained because the real property was owned by an LLC and not by tenants in common or a joint tenancy, despite the fact that the parties to the partition action were members of the LLC:
An action for the partition and sale of real property may be maintained by “[a] person holding and in possession of real property as joint tenant or tenant in common” (RPAPL 901[1]). The evidence submitted by the plaintiffs on their summary judgment motion established that, contrary to the allegations in the complaint, the property was owned exclusively by the LLC and not by Emerson, Kasan, and the defendant as tenants in common. Essentially, the plaintiffs contended that the three individual parties held equal membership interests in the LLC, which owned the property. “A membership interest in the limited liability company is personal property. A member has no interest in specific property of the limited liability company” (Limited Liability Company Law § 601). Thus, the individual parties hold no ownership interest in the property. Further, even assuming that the plaintiffs had established that the individual parties held equal membership interests in the LLC, there is no allegation or evidence that the LLC has been dissolved or that the LLC’s affairs have been properly wound up (see id. § 703). Accordingly, this action, inter alia, for partition and sale of the LLC’s property cannot be maintained … . 459 Wash. Ave., LLC v Atkins, 2024 NY Slip Op 04538, Second Dept 9-25-24
Practice Point: Although the partition action would have been available if the parties were joint tenants or tenants in common, it was not available because the property was owned by an LLC of which the parties were equal members. Members of an LLC have no interest in the specific property of the LLC.
THE MOTION TO INTERVENE BY A PARTY WHICH PURCHASED THE PROPERTY IN FORECLOSURE SHOULD HAVE BEEN GRANTED; THE BANK DID NOT PROVE THE BORROWER’S DEFAULT BECAUSE THE RELEVANT BUSINESS RECORDS WERE NOT ATTACHED TO THE VICE PRESIDENT’S AFFIDAVIT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined (1) the motion to intervene by a party (the LLC) which had purchased the property subject to foreclosure should have been granted, (2) noncompliance with the notice requirement of RPAPL 1304 and 1306 and the mortgage agreement cannot be raised by the intervenor, a stranger to the note and mortgage, and (3) the bank did not prove the borrower’s default because the relevant business records were not attached to the bank’s affidavit:
…. [T]he LLC established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3]; 6501 …). …[T]he fact that the LLC obtained its interest in the premises after the action was commenced and the notice of pendency was filed does not definitively bar intervention … . * * *
… [The bank] failed to provide evidence in admissible form of the borrower’s default in payment of the note … . In his affidavit submitted in support of U.S. Bank’s motion, Bennett [vice president of the bank’s servicer] averred that he was personally familiar with Rushmore’s record-keeping practices and that, based on his review of Rushmore’s business records, the borrower “defaulted under the terms of the loan documents by failing to make the monthly installment due on January 1, 2015 and has remained in default to the present date.” However, Bennett’s assertion regarding the borrower’s alleged default constituted inadmissible hearsay, as he failed to annex to his affidavit the business records on which he relied … . U.S. Bank N.A. v Medina, 2024 NY Slip Op 04588, Second Dept 9-25-24
Practice Point: Here the party which purchased the property in foreclosure should have been allowed to intervene.
Practice Point: In foreclosure proceedings affidavits which purport to describe the contents of business records which are not attached constitute inadmissible hearsay.
OBJECTIVE MEASUREMENTS ARE NOT NECESSARY TO PROVE A SIDEWALK HEIGHT DIFFERENTIAL DEFECT IS TRIVIAL; HOWEVER, HERE THE DEPOSITION TESTIMONY, THE PHOTOGRAPHS AND THE OPINION OF A HUMAN FACTORS EXPERT (WHICH WAS NOT BASED ON OBJECTIVE MEASUREMENTS) DID NOT SUPPORT SUPREME COURT’S FINDING THE DEFECT IS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court’s finding that the sidewalk defect was trivial as a matter of law, determined (1) objective measurements of a sidewalk defect in a slip and fall case are not required for a defendant to make out a prima facie case that the defect is trivial (2) photographs can be examined to determine triviality and (3) the opinion of a human factors expert about a sidewalk elevation differential is inadmissible if it is not based on an objective measurement or a “fairly inferable estimate of the differential:”
In this trip-and-fall case, the defendants moved for summary judgment dismissing the complaint on the ground that the alleged defect on which the injured plaintiff tripped was trivial as a matter of law and, thus, not actionable. In support of their motion, the defendants submitted photographs of the alleged defect, along with other evidence, but they did not submit an objective measurement of the dimensions of the alleged defect. On the plaintiffs’ appeal from the order granting the defendants’ motion, we address three specific questions relating to the trivial defect doctrine: (1) To establish, prima facie, that an alleged sidewalk defect was trivial as a matter of law and, thus, not actionable, must a defendant moving for summary judgment present an objective measurement of the alleged defect’s dimensions? (2) If not, how are courts to examine photographic evidence in order to determine whether the alleged defect is trivial? (3) Is the opinion of a human factors expert conclusory and speculative, and therefore inadmissible, if the opinion is not based upon objective measurements of the defect? For reasons set forth below, we hold that an objective measurement of a defect is not a per se requirement for a party to meet the prima facie burden of proving an entitlement to summary judgment. We use this occasion to discuss how photographs in such instances should be examined to render a determination on triviality. Further, we hold, as an issue of first impression, that the opinion of a human factors expert about an elevation differential is conclusory and inadmissible if it is not based upon an objective measurement or at least a fairly inferable estimate of the differential. * * *
In all, the defendants’ submissions, including the photographs, even when considered in combination with the deposition testimony and other evidence, did not support the Supreme Court’s conclusion of triviality as a matter of law … . Snyder v AFCO Avports Mgt., LLC, 2024 NY Slip Op 04584, Second Dept 9-25-24
Practice Point: Consult this opinion for guidance on the proof required to find a sidewalk height differential trivial as a matter of law, including the role of objective measurements, interpretation of photographs and the sufficiency of a human-factors expert’s opinion.
THE MAJORITY HELD DEFENDANT, BY APPROACHING A JUROR AT THE JUROR’S HOME DURING DELIBERATIONS, FORFEITED HIS RIGHT TO A TRIAL BY A JURY OF 12; OVER A DEFENSE MOTION FOR A MISTRIAL, DEFENDANT WAS CONVICTED BY A JURY OF 11 AND THE MAJORITY AFFIRMED; THERE WAS A STRONG DISSENT (SECOND DEPT).
The Second Department, in a comprehensive decision discussing a defendant’s constitutional right to a trial by a jury of 12, over a dissent, determined defendant had forfeited his right to a 12-member jury by approaching a juror at the juror’s home as deliberations were proceeding. Over a defense motion for a mistrial, the trial judge ordered the jury to continue deliberations with 11 jurors. Defendant was convicted:
From the dissent:
… I respectfully disagree with the conclusion of my colleagues in the majority that the defendant’s New York State constitutional rights were not violated upon permitting the jury to proceed with deliberation and conviction of the defendant by an 11-member jury.
… [T]he New York State Constitution specifically guarantees defendants a right to a jury of 12 (see NY Const, art I, § 2; art VI, § 18; …). New York Constitution, article I, § 2 describes the right to a trial by jury as “inviolate forever” and requires the waiver of a jury trial to be achieved by “written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” … [T]he Court of Appeals has determined that a defendant may, upon a written waiver executed in the manner specified by the State Constitution, consent to a jury of 11 if a deliberating juror becomes incapacitated and no alternate juror is available … * * *
Here, there is no dispute that the defendant’s conduct was egregious and unacceptable. He feigned an illness so that he could approach a juror, at the juror’s home, clearly in an attempt to influence his trial. While the defendant should not be permitted to “tak[e] advantage of his . . . own wrongdoing” … , I believe it was error for the Supreme Court to utilize the “extreme, last-resort analysis” of denying the defendant his inviolate right to a jury of 12 before considering alternate sanctions for this egregious behavior … . People v Sargeant, 2024 NY Slip Op 04580, Second Dept 9-25-24
Practice Point: Here the defendant was deemed to have forfeited his right to a trial by a jury of 12 by approaching a juror at the juror’s home during deliberations. Defendant’s conviction by a jury of 11 was affirmed over a strong dissent.
THE ARBITRATION RULING THAT THE CONTRACT WAS TERMINATED UNDER A “FRUSTRATION OF PURPOSE” THEORY PRECLUDED, UNDER THE DOCTRINE OF RES JUDICATA, ANY CONSIDERATION OF THE BREACH OF CONTRACT CAUSES OF ACTION THAT AROSE FROM THE SAME FACTS (FIRST DEPT).
The First Department, in a detailed full-fledged opinion by Justice Oing, determined the arbitration-ruling that a multi-million dollar contract for construction and operation of a liquid-natural-gas-related facility was terminated under a “frustration of purpose” theory precluded consideration of the breach of contract causes of action (res judicata). New technology for the extraction of natural gas from shale had rendered the liquid natural gas facility obsolete. The opinion is much too detailed to fairly summarize here. In simple terms, the arbitration ruling precluded the breach of contract causes of action under the doctrine of res judicata because all arose from the same facts:
Under the transactional analysis, the test is to determine whether a claim should be precluded by viewing a claim or cause of action as conterminous with the transaction, regardless of the number of substantive theories or variant forms of relief available to a litigant … . The analysis embraces a broadened view of the scope of a claim in order to limit the number of possible actions arising out of a single controversy … . The application of this test means that a final judgment on the merits of a claim or claims will bar future claims or causes of action arising from “all or any part of the transaction, or series of connected transactions, out of which the [prior] action arose” … . The question for us to resolve is whether the [breach of contract causes of action] arise from “all or any part of the transaction, or series of connected transactions” out of which the prior arbitration arose. We hold they do. Gulf LNG Energy, LLC v Eni S.p.A., 2024 NY Slip Op 04517, First Dept 9-24-24
Practice Point: Here an arbitration ruling that the contract was terminated for “frustration of purpose” precluded, under the doctrine of res judicata, any consideration of the breach of contract causes of action that arose from the same facts.
HEARSAY STATEMENTS IN AN UNCERTIFIED, UNAUTHENTICATED REPORT FOR WHICH NO FOUNDATION WAS PROVIDED DID NOT CREATE AN ISSUE OF FACT (FIRST DEPT).
The Frist Department, reversing Supreme Court in this hit and run traffic accident case, noted that hearsay statements in the Prehospital Care Report, which was not certified or authenticated, did not create an issue of fact:
The court improperly denied petitioner’s motion based on hearsay statements in the Prehospital Care Report, as the report was not certified or authenticated and no proper foundation was provided for it … . Therefore, the statements in the Prehospital Care Report cannot create an issue of fact. Even if it were appropriate to consider the report, it would “merely present[] an issue of fact to be resolved in the plenary action” since it is contradicted by the allegations in the petition, petitioner’s affidavit, the Household Affidavit, the motor vehicle accident report, and petitioner’s deposition testimony concerning whether there was contact between his bicycle and the hit and run vehicle … . Matter of Luna v Motor Veh. Acc. Indem. Corp., 2024 NY Slip Op 04521, First Dept 9-24-24
Practice Point: Hearsay statements in an uncertified, unauthenticated report for which no foundation was provided did not create an issue of fact.
THE FLOOR OF THE ELEVATOR WHERE PLAINTIFF’S ACCIDENT OCCURRED IS NOT A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court, determined the floor of an elevator is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action based upon an Industrial Code provision requiring that “passageways” be kept free from dirt, debris and other obstructions was inapplicable, However, the code provision requiring “floors” and “platforms” be kept free from scattered tools, etc., did apply to elevators:
Supreme Court should have granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 241 (6) claim insofar as it was predicated on 12 NYCRR § 23-1.7 (e) (1). That regulation provides, as relevant here, “All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” A passageway for purposes of this regulation “mean[s] a defined walkway or pathway used to traverse between discrete areas as opposed to an open area” … . The elevator in which plaintiff’s accident occurred cannot be considered a walkway or pathway, and therefore cannot constitute a passageway within the meaning of the regulation … . Smith v Extell W. 45th LLC, 2024 NY Slip Op 04533, First Dept 9-24-24
Practice Point: The floor of the elevator where plaintiff’s accident occurred is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action alleging a violation of the “passageway” code provision should have been dismissed.