Does a Landowner Have a Duty to Make an Open and Obvious Condition, Here a Steep Embankment, Safe?

Aberger v Camp Loyaltown, Inc., 2021 NY Slip Op 01188, First Dept 2-25-21

Did the Workers’ Compensation Board Properly Require the Carrier to Pay for Pain Treatment with Medical Marijuana?

Matter of Quigley v Village of E. Aurora, 2021 NY Slip Op 01174, Third Dept 2-25-21

Does the Public Health Law, Which Allows a Relative to Sign a Nursing Home Admission Contract, Apply to a Binding Arbitration Agreement?

Gayle v Regeis Care Ctr., LLC, 2021 NY Slip Op 01197, First Dept 2-25-21

57 FREE CLE COURSES

AVOID MISTAKES–95% OF THE DECISIONS IN THE CLE’S ARE REVERSALS

Civil Procedure, Negligence, Criminal Law, 1/2 to 1 Hour Courses, Each CLE Podcast Page Has a Detailed Outline of the Content and a Link to the Materials

SIGN UP FOR THE MAILING LIST AT THE BOTTOM OF THE PAGE FOR WEEKLY SITE UPDATES

Weekly Newsletter February 1 – 5, 2021

Weekly Newsletter–February 8 – 12, 2021

Weekly Newsletter–February 15 – 19, 2021

NEW YORK STATE APPELLATE DECISIONS IN DIGEST

Summaries of More than 12,500 Decisions Released Since January 2013 by All Four Departments of the Appellate Division and the Court of Appeals in an Organized, Searchable, Continuously Updated Database

Summaries Are Posted Weekly in the “Latest Posts” Section Below (Currently Covering the Week of February 22, 2021 – February 26, 2021–1st, 2nd and 3rd Departments)

For the Latest Summaries in Any Legal Category and/or Court See the Search Instructions in the “Latest Posts” Section (Below) or on the “Just Released” Page (Top Menu)

Bruce Freeman, Esq.,

Writer-Editor of CasePrepPlus Published Weekly by the New York State Bar Association; Co-Writer-Editor of wEbrief Published Weekly by the General Practice Section of the New York State Bar Association; Writer-Editor of Criminal Law Updates Published Monthly on the New York State Prosecutors Training Institute Website; Co-Author of Attorney’s Medical Advisor, a six volume medical treatise published by Clark Boardman Callaghan (Thomson Reuters)

Did Attorney Misconduct Warrant Setting Aside a $21 Million Medical Malpractice Verdict?

Yu v New York City Health & Hosps. Corp., 2021 NY Slip Op 08215, Second Dept 2-24-21

On This Site:

  1. Searchable Database of Over 12,500 Decision-Summaries Categorized by Legal Topic with the Issues Identified in Succinct Headings
  2. “Latest Posts” Updated Weekly
  3. Monthly CLE Courses Offering More than 40 Credits
  4. Monthly Update Pamphlets
  5. Monthly Practice Newsletters
  6. Year in Review Pamphlets
  7. Targeted Research Pamphlets

A REPORTER FOR EVERY CATEGORY AND COURT

The Database of More than 12,500 Decision-Summaries Serves as a Reporter for Every Legal Category and Court. Click on any Legal Category and/or Court in the Drop-Down Menu of the Search Panel (Located in the “Latest Posts” Section Below) and then Click on “Search.” All the Decision-Summaries in that Category and/or Court Posted Since January 2013 Will Come Up, Most Recent First.

February 2021 Negligence Update

An Organized Compilation of the Summaries of Negligence-Related Decisions Posted in February 2021

Click on the Link Below

For All Other 2019/2021 Negligence Pamphlets Click on “Update Service” in the Top Menu

Negligence Update Pamphlet February 2021

February 2021 Civil Procedure Update

An Organized Compilation of the Summaries of the Civil-Procedure-Related Decisions Posted in February 2021

Click on the Link Below

For All Other 2019/2021 Civil Procedure Pamphlets Click on “Update Service” in the Top Menu

Civil Procedure Update Pamphlet February 2021

February 2021 Criminal Law Update

An Organized Compilation of the Summaries of Criminal-Law-Related Decisions Posted in February 2021

Click on the Link Below

For All Other 2019/2021 Criminal Law Pamphlets Click on “Update Service” in the Top Menu

Criminal Law Update Pamphlet February 2021

How To Use the New York Appellate Digest

The content of the smaller categories can serve as checklists for the preparation of a case. If you are bringing a Medical Malpractice case, for example, why not browse through all of the decision-summaries in that category before you interview your client? In a few minutes you can survey all the Medical Malpractice issues which have made it to the appellate courts since 2013. You may be able to avoid mistakes made by others. If you are bringing a construction-accident case, browse through the Labor Law-Construction Law category. The hidden pitfalls in that area of the law will surprise you. There are many smaller categories which can be used to jump-start the initial preparation of a case.

There are only three categories which are too large to browse: Negligence, Civil Procedure and Criminal Law. By getting comfortable with the Search function, even these larger categories can serve as “checklists” for case preparation.

Note: Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Below.

The summaries of the decisions released the week before are here on the Home Page, organized by release date (not legal category) with the most recent releases first. For readers who like to browse through all of last week’s decision-summaries in one place, the “Latest Posts” section (below) provides that service.

The Search Function allows the reader to zero in on the most recent decision-summaries in specific categories. Click on the “All Categories” line in the Search Panel (at the Top of the “Latest Posts” Section on the Home Page and on the right side all other website pages) to reveal the drop-down menu. Choose a category from the drop-down menu and click on “Search.” All the decision-summaries in that category will come up (going back to January 1, 2013), the most recent first.

Similarly, just clicking on any category in the Footer at the bottom of every page will bring up the all the decision-summaries in that category, the most recent first (an alternative to using the Search Panel for this purpose).

For the latest decision-summaries in all categories from a specific court, choose “All Categories” in the first line of the search panel, choose the court from the menu, and click on “Search.” To select multiple courts, hold the “Ctrl” key down and click on the courts. To de-select a selected court, hold the “Ctrl” key down and click on it.

For the latest decision-summaries in a specific legal category and from a specific court choose a category from the drop-down menu in the Search Panel, choose the court from the menu, and click on “Search.” To select multiple courts, hold the “Ctrl” key down and click on the courts. To de-select a selected court, hold the “Ctrl” key down and click on it.

Click on “Just Released” for more instructions on how to search for the most recent decisions.

Note: Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Below.

The search function can be used to get caught up on what all the courts have ruled on so far this year, or what any specific court has ruled on so far this year, or what any court has ruled on during any time period, going back weeks, months or years. Just add the “start” and “end” dates to your searches (the third and fourth lines in the search panel on the right side of the page).

In the posts “Just Released,” “Streamlined Research” and “Update Service,” how to do (1) searches in all legal categories, (2) searches in specific categories, (3) searches using keywords and phrases, and (4) searches confined to specific courts, is explained in some detail. Use the “start” and “end” date criteria to confine any of those types of searches to a specific time period.

If, for example, you want to see what the Fourth Department has addressed in the category “Criminal Law” in 2019, click on “Criminal Law” in the drop-down menu in the Search Panel (revealed when you click on “All Categories”), choose January 1, 2019, as the start date, choose December 31, 2019, as the end date, click on “Fourth Department” in the Search Panel menu and click on “Search.”

If you want to see what the Court of Appeals ruled on last year in all categories, leave “All Categories” in the top line of the search panel, choose January 1, 2019, for the start date and December 31, 2019 for the end date, click on “Court of Appeals” in the search panel menu and click on “Search.”

Any type of search can be confined to any specific time period between January 1, 2013, and today.

For more on this “personalized update service” capability, click on “Update Service.”

Note: Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Below.

The New York Appellate Division database is comprised of over 10,000 summaries of selected decisions released since January, 2013, by all four departments of the Appellate Division and the Court of Appeals. All areas of the law addressed by the courts are covered, from Administrative Law to Zoning. See the drop-down menu in the Search Panel at the top of the “Latest Posts” section on the Home Page and on the right side of every other website page (revealed by clicking on “All Categories”) or the Footer on every page for the complete list of covered legal categories.

The database is unique among case-law databases because the decisions have already been selected for their instructive value, studied and analyzed. The summaries of the decisions that make up this database have already been organized and placed in all relevant legal categories. The issues in each decision have already been identified and described in the headings of the summaries. The most instructive portions of the decisions have already been located and are directly quoted in the summaries. Much of the work that ordinarily goes into case-law research has been done before you click on the “Search” button.

Because all the decision-summaries have been organized by linking each one to all relevant legal categories, searches are focused, fast and efficient. Choosing the right category and/or searching for a single strong keyword or a strong phrase (in the “Search by Keywords” line of the search panel) is often enough to bring up most or all of the summaries on that specific topic.

The time it takes to sort through search results, eliminate the irrelevant, and collect the relevant, is drastically reduced because the concise summary-headings describe the issues addressed by each decision.

For instructions on how to use the site as an up-to-date research tool click on “Just Released,” “Update Service,” and “Streamlined Research.”

Note: Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Below.

Since January, 2013, without interruption, I have been sifting through all the Appellate Division and Court of Appeals decisions released each week, choosing the most instructive for inclusion in the New York Appellate Digest database.

With only two narrow exceptions (attorney-grievance decisions, and no-fault serious-injury decisions) every area of the law addressed by our appellate courts over the past six years or so is covered in the New York Appellate Digest database (see the footer for the list of covered categories). It is now rare for a completely new or novel legal issue to come up, an indication the 10,000 decision-summaries present a fairly complete picture of the law of New York.

The key to finding what you are looking for in the database is choosing the most relevant legal categories and the best keywords or phrases for database searches. For the basics on searches click on “Just Released,”  “Update Service,” and “Streamlined Research.”

The pages linked to below are offered to provide some idea of the depth of coverage in the database of specific areas of the law and may therefore help in choosing the best categories and keywords for a database search.

ADMINISTRATIVE LAW;

APPEALS;

ARBITRATION;

ATTORNEYS;

BUSINESS ORGANIZATIONS;

CIVIL PROCEDURE;

CIVIL RIGHTS LAW;

CONSUMER LAW;

CONTRACT LAW;

CRIMINAL LAW;

DEBTOR-CREDITOR;

DEFAMATION;

EDUCATION-SCHOOL LAW;

EMPLOYMENT LAW;

ENVIRONMENTAL LAW;

FAMILY LAW;

FORECLOSURE;

FRAUD;

FREEDOM OF INFORMATION LAW (FOIL);

INSURANCE LAW;

INTENTIONAL TORTS;

LANDLORD-TENANT;

MENTAL HYGIENE LAW;

MUNICIPAL LAW;

PERSONAL INJURY;

PRODUCTS LIABILITY;

REAL PROPERTY;

TAX LAW;

TRUSTS AND ESTATES;

UNEMPLOYMENT INSURANCE;

WORKERS’ COMPENSATION;

ZONING AND LAND USE.

When a decision is reversed, modified, remitted, reargued, overruled, etc., the summary of any related decision already in the New York Appellate Digest database is NOT flagged.

I have made an effort to summarize every substantive Court of Appeals decision released since January 2013, and every reversal by the Court of Appeals, even if the reversal-decision is not substantive. So a “post-January, 2013” reversal of an Appellate Division decision should be in the “Court of Appeals” portion of the New York Appellate Digest database. Bear in mind, however, a single Court of Appeals decision may reverse more than one lower-court decision. Therefore a Court of Appeals citation in the New York Appellate Digest database may not include all parties affected by a reversal.

The database may not include every reversal by the Court of Appeals (I don’t think I missed any, but …). In addition, a reversal is not the only way a decision can be rendered obsolete. Court of Appeals and Appellate Division decisions may be overruled by the United States Supreme Court (i.e., the Supreme Court’s warrant-requirement for cell-phone-location records). Decisions at both the Court of Appeals and Appellate Division levels sometimes indicate prior contrary rulings should not be followed. One Appellate Division department may expressly disagree with rulings on the same issue made in other departments. Decisions may subsequently be reargued, or remitted before or after appeal, leading to a different result. It is certainly possible that not every decision stemming from the same proceeding has been included in the New York Appellate Digest database.

Therefore, before relying on any decision summarized here, make sure it is good law using the method you trust for that purpose.

Note: Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Above.

You can easily download or print your search results:

At the top of any “Search Results” page you will see a “PDF” icon and the phrase “PDF Friendly Version” as well as a “printer” icon and the phrase “Print Friendly Version.” A search-result can be downloaded to your computer by clicking on “PDF Friendly Version,” or printed out by clicking on “Print Friendly Version.”  The downloaded or printed document will include all the decision-summaries on the website page. If necessary, you can increase the number of summaries on the page (so the entire search-result will be in a single downloaded or printed document) by clicking on the “Results Per Page” line of the Search Panel. The links to the full decisions remain live in a downloaded document. If a search is properly focused, the search-result document functions as a memorandum of law.

You may notice “index entries” that were, in the past, included at the end of each decision-summary (to facilitate creating an index for the older issues of the New York Appellate Digest) are visible in the “PDF Friendly Version” and the “Print Friendly Version” (they are not visible on the website pages).

Latest Posts

Summaries of Selected Decisions Released the Week of February 22 –  26, 2021, by the First, Second and Third Departments Are Posted Here (below), Organized by Date Only (Not by Legal Category or Court).

Follow the Directions Below to Pull Up the Decision-Summaries, Including the Summaries Here in the “Latest Posts” Section, by Legal Category and/or by Court.

For the Latest Posts in a Specific Legal Category Use the Search Panel. Click on “All Categories,” Pick the Category from the Drop-Down Menu, and Click on “Search.” A Category Search Brings Up All the Posts in the Database Going Back to January 2013, Most Recent Posts First.

The Latest Posts in a Specific Legal Category Can Also Be Accessed Simply by Clicking on the Category in the Footer at the Bottom of All of the Website Pages.

For the Latest Posts from a Specific Court, Most Recent First, Use the Search Panel—Either Choose “All Categories” or a Specific Category in the Drop-Down Menu (Revealed by Clicking on “All Categories” at the Top of the Search Panel) and Choose the Desired Court by Clicking On It in the Menu, then Click on “Search”—To Choose Multiple Courts, Hold Down the “Ctrl” Key and Click on Them—To De-Select a Selected Court, Hold Down the “Ctrl” Key and Click on It.

Sign Up for the Mailing List in the Footer (below) to be Notified As Soon As the Latest Posts Are Online

SEARCH PANEL

Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Above in the “How to Use the New York Appellate Digest” section.

Use the Magnification Function in Your Browser to Increase the Font Size

You Can Download or Print Your Search Results by Clicking on the “PDF” or “Print Friendly” Buttons at the Top of the Search Results–See the Instructions Under “How to Use the New York Appellate Digest” Above


If this site helps you in your practice, please consider a monthly donation. [Donations Are NOT Tax Deductible]

The Third Department, in a comprehensive opinion by Justice Egan, determined the Workers’ Compensation Board properly issued a variance allowing coverage for medical marijuana for treatment of claimant’s pain. The opinion is too detailed to fairly summarize here. The carrier’s federal conflict preemption and statutory (Public Health Law) exemption arguments were rejected:

“The federal preemption doctrine has its roots in the Supremacy Clause of the United States Constitution, and federal preemption of state laws generally can occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law” … . At issue here is conflict preemption, “which occurs when compliance with both federal and state law is a physical impossibility, or where the state law at issue . . . stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” … .

* * * [R]equiring the carrier to reimburse claimant … does not serve to subvert, in any way, the principal purposes of the Controlled Substances Act in combating drug abuse and controlling “the legitimate and illegitimate traffic in controlled substances” … , particularly where, as here, claimant was validly prescribed and authorized to use medical marihuana by his pain management specialist to both treat his chronic pain and reduce his reliance on opiates. Matter of Quigley v Village of E. Aurora, 2021 NY Slip Op 01174, Third Dept 2-25-21

The Third Department determined plaintiffs’ complaint in this PFOA contamination case properly survived defendant’s motion for summary judgment. The court found that the doctrine of primary jurisdiction did not apply, defendant owed plaintiffs a duty of care, defendant did not demonstrate it did not proximately cause the alleged injuries, there was a question of fact on the private nuisance and trespass causes of action, and the punitive damages claim was proper. With respect to the doctrine of primary jurisdiction, the court wrote:

[The] doctrine “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views”… . Defendant argues that the various regulatory agencies, who have the requisite expertise, have been investigating the matter at issue and that the recovery sought by plaintiffs is already being provided by these agencies. We disagree. Although defendant points to an announcement that the Department of Health will be providing medical monitoring, this announcement merely stated that a study was being proposed and that, if funded, the study would last for five years. Contrary to defendant’s representation, there was no definitive statement that the medical monitoring would be provided. As to the remediation of plaintiffs’ private wells, the consent order and other announcements, upon which defendant relies, do not address all of the relief requested by plaintiffs in the second amended complaint. Accordingly, defendant’s argument is without merit. Burdick v Tonoga, Inc, 2021 NY Slip Op 01178, Third Dept 2-25-21

The First Department, reversing Supreme Court, determined plaintiff wife’s adult daughter had the authority, pursuant to the Public Health Law, to execute the nursing home’s admission agreement on behalf of plaintiff’s husband (her father), who was deemed incapable of making health-care related decisions. In addition to the admission agreement, plaintiff’s daughter signed a binding arbitration agreement on her father’s behalf. After plaintiff’s husband died, plaintiff sued the nursing home which asserted that that the matter was subject to the arbitration agreement. The First Department held that, pursuant to the Public Health Law, plaintiff’s daughter had the authority to sign the admission agreement, because it related to her father’s health care, but she did not have the authority to sign the arbitration agreement:

The authority of the decedent’s daughter to act as a “surrogate” decision-maker pursuant to PHL 2994-d at the time decedent was admitted to JHL was limited to making decisions regarding “[a]ny treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition” (PHL 2994-a[12]). Although she had authority, pursuant to PHL 2994-d, to execute the Agreement for purposes of admitting her father into the facility for health care treatment, she did not have the authority to execute the Binding Arbitration Agreement on his behalf. Such agreement was entirely optional and had no bearing on the father’s health care. Accordingly, it is entirely outside of the purview of surrogate decision-maker’s authority set forth in PHL 2994-d. Gayle v Regeis Care Ctr., LLC, 2021 NY Slip Op 01197, First Dept 2-25-21

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor law 240(1) cause of action. Plaintiff was struck by a 200 pound fire damper when it fell from the wall. A co-worker was holding a rope tied to the damper and looped over a temporary frame. When plaintiff broke the last weld securing the fire damper the co-worker who was holding the rope was unable to keep the damper from falling:

… [T]he statute is violated where an object, while being hoisted or secured, falls because of the absence or inadequacy of a safety device of the kind enumerated in the statute … , including where, as here, the inadequacy or absence of a safety device results in the uncontrolled descent of an object … . Here, plaintiff was entitled to summary judgment because the rope proved inadequate to prevent the damper from falling … .

The eight-foot fall of the 200-pound damper that plaintiff was tasked with removing was not an ordinary construction site peril but an elevation-related hazard, within the ambit of Labor Law § 240(1), which was required to be secured against unregulated descent to prevent it from falling on plaintiff … . Further, regulating its descent to prevent it from falling would not have been contrary to the purpose of work … . Mayorga v 75 Plaza LLC, 2021 NY Slip Op 01204, First Dept 2-25-21

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Kapnick, over a dissent, determined the defendant property owner’s (COU’s) motion for summary judgment in this slip and fall case should not have been granted. COU owned a campground for developmentally disabled persons. Plaintiff, a developmentally disabled adult, slipped on a narrow grassy walkway and fell down the adjacent steep embankment, striking his head on one of the rocks at the bottom. The First Department held there were questions of fact whether the accident was foreseeable and whether the area should have been made safe with a barrier or handrail:

… [A]n issue of fact does exist as to whether COU violated its duty to maintain the premises in a reasonably safe condition by failing to erect a railing or barrier along the walkway. “A landowner must act as a reasonable [person] in maintaining [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . Indeed, “the duty of the owner or occupier will vary with the likelihood of plaintiff’s presence at the particular time and place of the injury. While [plaintiff’s] status is no longer determinative, considerations of who plaintiff is and what [his or her] purpose is upon the land are factors which, if known, may be included in arriving at what would be reasonable care under the circumstances” … .

… [A] landowner or occupier “has a duty to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property by posting warning signs or otherwise neutralizing dangerous conditions” … . “[E]ven if a hazard qualifies as ‘open and obvious’ as a matter of law, that characteristic merely eliminates the property owner’s duty to warn of the hazard, but does not eliminate the broader duty to maintain the premises in a reasonably safe condition” … . “A landlord’s duty to maintain premises in a reasonably safe condition … is not satisfied by permitting a highly dangerous — but correctible — condition to remain, simply because the dangerous condition is obvious” … . Aberger v Camp Loyaltown, Inc., 2021 NY Slip Op 01188, First Dept 2-25-21

The Second Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict based upon the conduct of plaintiff’s counsel should not have been granted in this medical malpractice action. Plaintiff suffered a brain injury rendering him unable to take care of himself and was awarded over $21 million:

… [W]e conclude that the Supreme Court improvidently exercised its discretion in ordering a new trial in the interest of justice based upon attorney misconduct. Some of the challenged conduct was improper, and we do not condone it … . However, “where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of the opposing counsel to make a specific objection and for the court to rule on the objection, to direct the jury to disregard any improper remarks, and to admonish counsel from repetition of improper remarks” … . Here, defense counsel did not object to the challenged remarks during summation or request a curative instruction, thus depriving the court of the opportunity to direct the jury to disregard improper remarks or give other curative instructions, and to avoid further error … . “Where no objection is interposed, a new trial may be directed only where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial” … . The misconduct of the plaintiff’s counsel in the instant case was not so pervasive or prejudicial as to have deprived the defendant of a fair trial, or to have affected the verdict, particularly in light of the strength of the plaintiff’s case … .  Accordingly, we deny that branch of the defendant’s motion pursuant to CPLR 4404(a) which was to set aside the verdict and for a new trial in the interest of justice, and reinstate the verdict. Yu v New York City Health & Hosps. Corp., 2021 NY Slip Op 08215, Second Dept 2-24-21

The Second Department, reversing County Court and remitting the defendant’s motion to withdraw his plea, determined defendant’s motion was made pursuant to CPL 220.60, not CPL 330.30. Therefore the evidence submitted by the defendant demonstrating his innocence of the charged crime could properly be considered. County Court had not considered the motion because the supporting evidence was outside the record:

The defendant’s motion to withdraw his plea of guilty was clearly made pursuant to CPL 220.60(3), and the County Court should not have deemed it to be a motion to set aside a verdict pursuant to CPL 330.30(1). CPL 220.60(3) provides that “[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty . . . to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored” … . “The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion” … . In general, “such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea” … . “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare instances” … .

Here, the County Court, improperly relying upon CPL 330.30(1), determined that the defendant’s submissions in connection with his motion to withdraw his plea were outside the record and did not consider them. People v Murphy, 2021 NY Slip Op 08203, Second Dept 2-24-21

The Second Department, reversing defendant’s assault first conviction, determined the robbery first and assault first counts were multiplicitous. The redundant count was dismissed in the interest of justice (error was not preserved):

“An indictment is multiplicitous when two separate counts charge the same crime” … . “Multiplicity does not exist where each count requires proof of an additional fact that the other does not” or where “a conviction on one count would not be inconsistent with acquittal on the other” … . “If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed” … . Here, the record reflects that the jury charges regarding the count of assault in the first degree and the count of robbery in the first degree were essentially identical since one cannot commit robbery in the first degree under Penal Law § 160.15(1) without simultaneously committing assault in the first degree under Penal Law § 120.10(4) … . As such, those charges were multiplicitous … . Although the dismissal of the multiplicitous count will not affect the duration of the defendant’s sentence of imprisonment, it is nevertheless appropriate in this case to dismiss the count charging assault in the first degree in consideration of the stigma attached to the redundant convictions … . People v Edmondson, 2021 NY Slip Op 08201, Second Dept 2-24-21

The Second Department, reversing Supreme Court, determined the plaintiffs’ cross-motion to amend the caption to reflect the correct name of the defendant and the defendant’s church should have been granted:

Where the summons and complaint have been served under a misnomer upon the party which the plaintiff intended as the defendant, an amendment will be permitted if the court has acquired jurisdiction over the intended but misnamed defendant provided that the intended but misnamed defendant was fairly apprised that he or she was the party the action was intended to affect, and the intended but misnamed defendant would not be prejudiced … . Here, the allegations contained in the complaint fairly apprised Sidney Klestov that he was the intended party defendant, and there is no evidence of any prejudice to him. Likewise, the plaintiffs established that the caption should be amended to correct the name of the Parish of the Holy Assumption Russian Orthodox Greek Church Catholic Church, Inc., to The Russian Orthodox Church of the Assumption, Inc. “‘[W]here the right party plaintiff is in court but under a defective name or title as party plaintiff, . . . an amendment correcting the title is permissible'” … . Accordingly, the Supreme Court should have granted the plaintiffs’ cross motion for leave to amend the caption to correct the names of the parties. Parish of the Holy Assumption Russian Orthodox Greek Church Catholic Church, Inc. v Klestoff, 2021 NY Slip Op 08198, Second Dept 2-24-21

The Second Department, reversing Supreme Court, determined the negligent supervision action by a student who was assaulted at school should not have been dismissed:

While the plaintiff testified that he had never been physically assaulted by the other student prior to the subject incident, he testified that the other student always made threatening comments to him during Spanish class, of which seven or eight were serious in nature, and three or four were accompanied by a closed fist motion in an attempt to get the plaintiff to flinch. The plaintiff also testified that he complained about these threats to the Spanish teacher, who had witnessed the other student make a closed fist motion toward the plaintiff on at least one or two occasions, and that he asked the teacher if she could do something about these threats, but she never said anything to the other student. Moreover, while the plaintiff testified that he did not know whether the other student had ever threatened or assaulted other students, the School District failed to submit any affidavit or deposition testimony from its own personnel establishing that it did not have specific knowledge or notice of the dangerous conduct that caused the alleged injuries to the plaintiff … .

With respect to proximate cause, the School District did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously “that even the most intense supervision could not have prevented it” … . The plaintiff testified that approximately 10 minutes before the end of class on the date of the assault, while the class was silently working on an assignment, the other student threatened out loud to stab him, which was overheard by the rest of the class and the teacher. Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist., 2021 NY Slip Op 08195, Second Dept 2-24-21

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should have been granted. The Second Department noted: (1) RPAPL 1304 (re: notice) and 1302-a (re: standing) do not apply where the subject loan is not a “home loan” because the property was not defendant’s principal dwelling;  (2) compliance with the notice requirements of RPAPL 1303 is a condition precedent to the commencement of a foreclosure action, but the issue cannot be raised for the first time on appeal; (3) the failure to provide notice of default as required by the mortgage cannot be raised for the first time on appeal. Nationstar Mtge., LLC v Gayle, 2021 NY Slip Op 08194, Second Dept 2-24-21

The Second Department, reversing Supreme Court (referee), determined the easement granted to defendants was valid. The easement related to an area which included a stucco wall and a covered wooden deck. The fact that the area may not have been accurately described by metes and bounds did not defeat the validity of the easement:

“In order to create an easement by express grant, plain and direct language must be used which evidences the grantor’s intention to permanently give a use of the servient estate to the dominant estate” … . The extent of an easement claimed under a grant is generally determined by the language of the grant … . The fact that the easement grant does not give the precise location of the easement is not fatal to a finding that an easement was intended … . Where the language of the grant is ambiguous or unclear, the court will consider surrounding circumstances tending to show the grantor’s intent in creating the easement … .

… [W]here, as here, the language was ambiguous, the Supreme Court should have considered “the surrounding circumstances and the situation of the parties when it was executed” … . The evidence presented at the hearing, which included the testimony of Emily Mazzuoccola [defendant], surveys, and photographs, demonstrated that the grantor intended to grant a perpetual easement with regard to the disputed area of land … containing improvements of a stucco wall and a covered wooden deck. The easement was specifically referenced on a survey dated July 2, 2002. Accordingly, the court should have determined that the subject easement was valid. Marino v Mazzuoccola, 2021 NY Slip Op 08176, Second Dept 2-24-21

The Third Department, on February 23, 2021, vacated and replaced the opinion in this case which was originally released on February 18, 2021. In the vacated opinion the court held father could not be deemed to have severely abused the children who were not his biological children because the severe abuse statute uses the term “parent.” However, in the replacement opinion, the court ruled father was properly found to have severely abused all of the children in the home. Father was present when mother severely beat her daughter, who subsequently died:

With respect to the father, although he is only the biological father of the younger daughter and the younger son, he lived with and had been in a relationship with the mother for approximately five years and, in his statement to police, referred to the all of the children in the home as “[o]ur kids.” The older daughter and the older son, moreover, refer to him as “dad” and there is no dispute that he was a person legally responsible for the subject children’s care at all relevant times (see Family Ct Act §§ 1012 [a]; 1051 [e]). Thus, as the deceased child’s brutal beating occurred while the father was present in the downstairs of the home, at a time when the mother’s yelling and the deceased child’s screaming could be heard throughout the house, we are satisfied that the father’s conduct in failing to intervene or otherwise take any action to provide the deceased child with life-saving medical care satisfied the elements of severe abuse as against her (see Social Services Law § 384-b [8] [a] [i]; Family Ct Act § 1051 [e] … ). The father’s conduct also evinced “such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care” … . Accordingly, we discern no reason to disturb Family Court’s finding that the father derivatively severely abused the four surviving children … . Matter of Lazeria F. (Paris H.), 2021 NY Slip Op 01155, Third Dept 2-18-21

The First Department, reversing defendant’s attempted assault conviction, in a full-fledged opinion by Justice Manzanet-Daniels, determined the jury instructions did not make it clear that if defendant was acquitted of the top count (attempted assault first) based upon the justification defense, it must not consider the lesser count (attempted assault second). Defendant was acquitted of attempted assault first and convicted of attempted assault second. Although defense counsel did not object to the jury instruction, the appeal was considered in the interest of justice:

The trial court instructed the jury that defendant had raised justification as a defense with respect to counts one and two and stated that the People were required to prove three elements to establish defendant’s guilt on count one, including “that defendant was not justified.” With respect to count two, the court stated that defendant had also raised the defense of justification. The court stated that as an element of count two the People were required to prove beyond a reasonable doubt that “the defendant was not justified.” * * *

The trial court here did not give the required Velez [131 AD3d 129] instruction. … [T]he trial court indicated to the jury that the attempted first-degree and second-degree assault charges … were wholly independent, even if the prosecution had not disproved justification as to the greater charge. The trial court … charged justification separately with respect to the two counts with no mention on the verdict sheet that acquittal on the greater charge would necessitate an acquittal on the lesser charge … . The court compounded the error by giving the same erroneous instruction in response to a note from the jury. People v Herrera, 2021 NY Slip Op 01148, First Dept 2-23-21