What Is the Standard for Harmless Error When the Error Is Constitutional, Here an Illegal Search of Defendant’s Person?

People v Lewis, 2022 NY Slip Op 04920, Second Dept 8-10-22

Is a Defaulting Defendant Entitled to Discovery Prior to the Inquest on Damages?

Brasil-Puello v Weisman, 2022 NY Slip Op 04893, Second Dept 8-10-22

Are Sexual Abuse Findings Made in Family Court Admissible in a Child Victims Act Suit Under the Doctrine of Collateral Estoppel?

Of Doe 44 v Erik P.R., 2022 NY Slip Op 04839, Fourth Dept 8-4-22

Does the Extended Statute of Limitations Under the Child Victims Act Apply to New York Residents Allegedly Abused at a Camp in Massachusetts?

Shapiro v Syracuse Univ., 2022 NY Slip Op 04835, Fourth Dept 8-4-22

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Can a Property Owner Be Vicariously Liable for Work Done by an Independent Contractor (Collapsed Deck)?

McGirr v Shifflet, 2022 NY Slip Op 04831, Fourth Dept 8-4-22

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Personal Injury Reversal Report July 2022

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Civil Procedure Reversal Report July 2022

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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.

Latest Posts

Summaries of Selected Decisions Released August 1 – 12, 2022, by the First, Second, Third and Fourth 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.

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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.

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The Third Department, over a two-justice dissent, determined the city properly amended its charter by deleting the provisions requiring the city to enforce payment of delinquent property taxes, thereby imposing that duty upon the county:

By adopting Local Law No. 2, the City amended its charter by deleting the provisions requiring the City to enforce the payment of delinquent taxes, leaving the County with that obligation under RPTL article 11. The City was statutorily authorized to do so pursuant to RPTL 1104 (2), which recognizes that a city charter “may from time to time be amended.” As a consequence of the amendment, the City is no longer a “tax district” for purposes of RPTL article 11 … and the County treasurer becomes the enforcing officer … . As such, the County treasurer is statutorily required to credit the City for unpaid delinquent taxes upon the return at the end of the fiscal year … . This outcome is neither an expansion nor impairment of the County’s powers but simply a consequence of the statutory structure outlined in RPTL articles 9 and 11. Matter of St. Lawrence County v City of Ogdensburg, 2022 NY Slip Op 04932, Third Dept 8-11-22

Practice Point: Here the city, pursuant to the Real Property Tax Law, properly amended its charter to remove the provisions requiring the city to enforce payment of delinquent property taxes, a duty which not falls upon the county.

The Second Department, reversing Supreme Court, determined defendant bar owner could not be liable for the spontaneous act of a bar patron which injured plaintiff:

… [T]he plaintiff allegedly sustained personal injuries at the defendants’ bar in Nassau County. At the time of the alleged incident, a female patron purportedly jumped onto the lap of a male patron, who was sitting on a bar stool. This apparently caused the two patrons and the bar stool to fall on top of the plaintiff, who was standing nearby. The plaintiff was “knocked” down to the floor…. ….

A property owner, which must act in a reasonable manner to prevent harm to those on its premises, has a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so … . Here, the defendants established, prima facie, that the alleged incident was spontaneous, and could not have been reasonably anticipated and prevented … . York v Paddy’s Loft Corp., 2022 NY Slip Op 04931, Second Dept 8-10-22

Practice Point: Here defendant bar owner could not be held liable for the spontaneous act of a bar patron which injured plaintiff.

The Second Department, reversing Supreme Court, determined plaintiff sufficiently identified the cause of the slip and fall. Defendant’s motion for summary judgment should not have been granted:

… [T]he defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resort to speculation. In support of his motion, the defendant submitted, inter alia, a transcript of the plaintiff’s deposition testimony, who identified a “raised up” sidewalk flag in photographs depicting the sidewalk where he fell, and, referring to the photographs, testified that he “tripped there.” Contrary to the determination of the Supreme Court, this evidence raised a triable issue of fact as to whether the plaintiff tripped on the sidewalk defect referenced … . Santiago v Williams, 2022 NY Slip Op 04922, Second Dept 8-10-22

Practice Point: Plaintiff’s evidence of the cause of his slip and fall, a raised sidewalk flag identified in a photograph, was sufficient to defeat defendant’s motion for summary judgment.

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the wallet seized in the search of his person should have been granted. The related robbery convictions were reversed and a new trial on those counts was ordered. Defendant fled from the scene of the mugging and was properly detained by the police. However, once the pat-down search revealed defendant did not have a weapon, the police should not have seized the (stolen) wallet from defendant’s pocket and searched it. The “constitutional” error was not harmless because, under the facts, the error could have influenced the factfinder:

… [E]ven assuming that the officers were justified in performing a protective frisk … , there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the wallet. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . There was no evidence presented at the suppression hearing that, during his frisk of the defendant, Nelson felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a danger to the officers at the scene. Indeed, Nelson did not testify at the hearing. Accordingly, there was no lawful basis for removing the wallet from the defendant’s pocket … , and that act violated the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures … . The officers committed an additional constitutional violation when, after retrieving the wallet from the defendant’s pocket, they opened it and conducted a warrantless search of its contents … . * * *

… [U]nder the constitutional standard, an error cannot be harmless if there is a reasonable possibility that it may have been a contributing factor that influenced the factfinder’s determination … . People v Lewis, 2022 NY Slip Op 04920, Second Dept 8-10-22

Practice Point: Although defendant was properly detained in a street stop, once the pat-down search revealed defendant did not have a weapon the police were not justified in seizing the stolen wallet from defendant’s pocket and then searching it.

Practice Point: There are two sets of harmless-error criteria, one for nonconstitutional error and one for constitutional error. Under the constitutional-error criteria, the error in this case was not harmless and a new trial was ordered.

The Second Department, reversing (modifying) Supreme Court, determined the plaintiff should have precluded from presenting any medical evidence at trial because plaintiff failed to comply with the conditional order requiring plaintiff to provide defendants with medical authorizations by a specified date:

… [T]he plaintiff failed to comply with the conditional order by providing authorizations for the individuals and entities listed in the defendants’ supplemental demands for authorizations. …

… [T]he conditional order became absolute on February 14, 2020, and to be relieved from the adverse impact of the conditional order, the plaintiff was required to demonstrate a reasonable excuse for failing to comply with the conditional order and a potentially meritorious cause of action … . The plaintiff failed to proffer a reasonable excuse for failing to comply with the conditional order, and thus, we need not reach the issue of whether he demonstrated the existence of a potentially meritorious cause of action … . Since the plaintiff failed to make the requisite showing to be relieved from the adverse impact of the conditional order, the Supreme Court should not have imposed a limitation on the directive in the conditional order precluding the plaintiff from presenting at trial any medical evidence on the issue of damages … . Martin v Dormitory Auth. of the State of N.Y., 2022 NY Slip Op 04907, Second Dept 8-10-22

Practice Point: Here the preclusion order became absolute when plaintiff failed to provide medical authorizations to defendants by the specified date. Plaintiff had no excuse for the failure to comply. Therefore plaintiff should have been precluded from offering any medical evidence at trial.

The Second Department, reversing Supreme Court, determined there was a question of fact about whether plaintiff, the front-most driver in this rear-end collision action, was negligent:

Hersh [defendant] raised a triable issue of fact sufficient to defeat summary judgment … . Hersh submitted his own affidavit in which he asserted that, prior to the accident, traffic was moving well and there was no ongoing road construction. Hersh asserted that the plaintiff then “suddenly and unexpectedly jammed on his brakes in front of me,” that Hersh “braked hard” and was able to stop without hitting the plaintiff’s vehicle, but that the vehicle behind Hersh then struck Hersh’s vehicle “twice in the rear,” pushing Hersh’s vehicle into the plaintiff’s vehicle. Hersh stated in his affidavit that, after the accident, he “looked all around on the nearby grass and even under plaintiff’s SUV but did not see any cone” obstructing the lane as the plaintiff claimed. Hersh’s affidavit was sufficient to raise a triable issue of fact as to whether Hersh had a nonnegligent explanation for hitting the plaintiff’s vehicle … . Joseph-Felix v Hersh, 2022 NY Slip Op 04905, Second Dept 8-10-22

Practice Point: Here the defendant in this rear-end collision case raised a question of fact about whether there was a nonnegligent explanation for defendant’s striking plaintiff’s car.

Practice Point: Although plaintiff’s lack of comparative negligence need no longer be asserted in plaintiff’s motion for summary judgment in a rear-end collision case, the issue may be considered at the summary judgment stage if plaintiff moves to dismiss defendant’s comparative-negligence affirmative defense.

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provision which was the basis of the Labor Law 241(6) cause of action did not apply to plaintiff’s demolition-work-injury and defendant general contractor (Lad) did not exercise supervisory control over defendant’s work and was not therefore liable under Labor Law 200:

… [T]he cause of action alleging a violation of Labor Law § 241(6) is predicated on Industrial Code 12 NYCRR 23-3.3(c), which mandates continuing inspections during hand demolition operations to detect hazards “resulting from weakened or deteriorated floors or walls or from loosened material.” … [Defendant] established …the inapplicability of this provision by demonstrating that the hazard arose from the plaintiff’s actual performance of the demolition work itself, and not structural instability caused by the progress of the demolition … . …

“Although property owners [and general contractors] often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” or for common-law negligence … . “A defendant has the authority to supervise or control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, Lad established, prima facie, that it did not possess the authority to supervise or control the means and methods of the plaintiff’s work … . Flores v Crescent Beach Club, LLC, 2022 NY Slip Op 04901, Second Dept 8-10-22

Practice Point: Here the cited Industrial Code provision did not apply to plaintiff’s Labor Law 241(6) demolition-work-injury cause of action and Labor Law 200 did not apply to defendant general contractor which did not exercise supervisory control over plaintiff’s work.

The Second Department, reversing Supreme Court in this foreclosure action, determined the complaint should not have been dismissed because plaintiff bank took steps to procure a default judgment within one year of the default. Any subsequent delays were irrelevant:

… [A]pproximately two months after the defendant’s default, the plaintiff moved for an order of reference. The fact that the Supreme Court later “marked off the calendar” the motion was irrelevant for the purposes of satisfying CPLR 3215(c) because the plaintiff was only required to “take proceedings for the entry of judgment” within the one-year time frame, and not actually obtain the judgment … . “[I]t is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference to establish that it initiated proceedings for entry of a judgment within one year of the default for the purposes of satisfying CPLR 3215(c)” … . … [T]he plaintiff was not required to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c) … . Deutsche Bank Natl. Trust Co. v Khalil, 2022 NY Slip Op 04898, Second Dept 8-10-22

Practice Point: To avoid dismissal pursuant to CPLR 3215 (c) a plaintiff need only take proceedings for the entry of a default judgment within one year of the default and need not obtain a default judgment within a year; any delays after the one-year period are irrelevant.

The Second Department, reversing Supreme Court, determined the defaulting defendant whose answer had been struck was not entitled to further discovery for the inquest on damages:

The Supreme Court erred in granting the defendant’s motion to vacate the note of issue and certificate of readiness and to compel the plaintiff to provide additional discovery. “While a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages, such a defendant is not entitled to any further discovery since its answer was stricken” … . Here, since the court struck the defendant’s answer … the defendant “is not entitled to any further discovery” … . Brasil-Puello v Weisman, 2022 NY Slip Op 04893, Second Dept 8-10-22

Practice Point: A defaulting defendant whose answer has been struck is not entitled to discovery prior to the inquest on damages.

The First Department, in a full-fledged opinion by Justice Pitt, reversing (modifying) Supreme Court, dismissed the remaining actions brought by certificateholders against the trustee (US Bank National Association) for residential mortgage backed securities (RMBS) trusts. The opinion is fact-specific, based upon contract language, and cannot be fairly summarized here:

This case involves residential mortgage-backed securities (RMBS). Usually, this type of case is filed by an RMBS trustee because they are generally the only party with standing to assert the trust’s right to compel repurchase of defective loans and to take action against the parties responsible for the improper servicing of loans. Here, however, plaintiffs, as certificateholders of nine RMBS trusts, bring this action for breach of contract against defendant U.S. Bank National Association, as trustee of the nine RMBS trusts, for failure to carry out its alleged duties as trustee in response to the contractual breaches by other transaction parties. The main issues raised in this appeal are: (1) whether the governing trust documents imposed contractual obligations on the trustee … to identify and take action before an event of default (EOD) arose (pre-EOD claims); and (2) whether plaintiffs may rely on the servicers’ annual assessments and the trustee’s letter to the servicer to satisfy the “written notice” element of the claim that the trustee breached its contractual obligations to take action as a “prudent” trustee after an EOD arose (post-EOD claims). Western & Southern Life Ins. Co. v U.S. Bank N.A., 2022 NY Slip Op 04886, First Dept 8-9-22

Practice Point: Here breach of contract actions by certificateholders against the trustee for residential mortgage backed securities trusts were dismissed.

The Fourth Department, reversing Supreme Court, over a substantial dissent, determined defendant in this Child Victims Act action was not collaterally estopped from disputing the sexual abuse allegations based upon the related Family Court proceedings. Hearsay evidence properly admitted in Family Court is not admissible in this civil action in Supreme Court:

… [A]lthough the burden of proof for both the Family Court proceeding and these personal injury actions is the same, i.e., preponderance of the evidence … , hearsay evidence that was admissible in the underlying Family Court proceeding would not be admissible in the instant personal injury actions … . Inasmuch as our determination in the prior Family Court proceeding was based largely on hearsay evidence that would not be admissible in these civil actions, we agree with defendant that he should not be collaterally estopped from defending these actions and that the court erred in granting plaintiffs’ motions for partial summary judgment on liability. Of Doe 44 v Erik P.R., 2022 NY Slip Op 04839, Fourth Dept 8-4-22

Practice Point: Here the sexual abuse findings in a Family Court proceeding could not be the basis for collateral estoppel prohibiting defendant from disputing the child abuse allegation in this Child Victims Act action. Hearsay admitted in the Family Court proceeding is inadmissible in this civil proceeding.

The Fourth Department, over a substantial dissent, determined plaintiff’s Labor Law 240(1) action should have survived summary judgment. Plaintiff fell from a ladder attempting to pass sheet rock to another worker on a scissors lift. The dissent argued plaintiff should have used the scissors lift and therefore was the sole proximate cause of the fall. There was evidence the operator of the scissors lift refused to reposition it to allow plaintiff to access it, and, therefore, plaintiff’s use of the ladder was not the sole proximate case of his fall:

With respect to the Labor Law § 240 (1) claim, we conclude that defendants did not meet their initial burden of establishing as a matter of law that plaintiff was the sole proximate cause of the accident … . … [D]efendants established that the coworker, who was operating and standing in the scissor lift at the time of the accident, denied plaintiff’s request for access to the device by refusing to reposition it to allow plaintiff to safely lift the sheetrock into place. We note that “[i]t is well established that there may be more than one proximate cause of an injury” … , and that “[q]uestions concerning . . . proximate cause are generally questions for the jury” … .

Our dissenting colleague argues that the court properly concluded that, as a matter of law, plaintiff was the sole proximate cause of the accident because he chose to use the ladder instead of the scissor lift. The court’s conclusion was based on plaintiff’s deposition testimony admitting that use of the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. We disagree with the dissent’s conclusion. Although plaintiff testified that the scissor lift was the proper device to use for his work, that statement alone does not, under the unique circumstances of this case, establish that plaintiff knew that the scissor lift was “available” and “chose for no good reason” not to use it … . Further, “[w]here causation is disputed, summary judgment is not appropriate unless only one conclusion may be drawn from the established facts” … and, here, in light of the coworker’s alleged conduct, the evidence is not conclusive about whether plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Thomas v North Country Family Health Ctr., Inc., 2022 NY Slip Op 04836, Fourth Dept 8-4-22

Practice Point: Apparently use of a scissors lift, not a ladder, was the appropriate method for the work. Plaintiff fell from a ladder attempting to do the work. There was evidence the operator of the scissors lift would not allow plaintiff to access it. Therefore plaintiff’s use of the ladder may not have been the sole proximate cause of the fall and the defense motion for summary judgment on the Labor Law 240(1) cause of action should not have been granted. There was a substantial dissent.

The Fourth Department, reversing (modifying) Supreme Court, determined the “resident exception” to the borrowing statute applied to New-York-resident plaintiffs who allegedly were sexually abused decades ago at a camp in Massachusetts run by Syracuse University. Ordinarily New York’s borrowing statute requires that an action for an out-of-state tort be timely under both New York’s Child Victims Act and the foreign state’s statute of limitations. However, there is an exception to that rule when the plaintiffs, abused in a foreign state, were New York residents at the time of the abuse:

“When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation[s] periods of both New York and the jurisdiction where the cause of action accrued” … . In tort cases, the Court of Appeals has held that “a cause of action accrues at the time and in the place of the injury” … . Thus, for [such] claims to survive, they must be timely under both CPLR 214-g and the applicable [foreign state’s] statute of limitations. …

… [Plaintiffs] were New York residents when the … causes of action accrued. Pursuant to the “resident exception” of the borrowing statute … , a claim that accrues in favor of a New York resident will be governed by the New York statute of limitations regardless of where the claim accrued (see CPLR 202 … . … [Teh Child Victims Act] revival statute applies … . Shapiro v Syracuse Univ., 2022 NY Slip Op 04835, Fourth Dept 8-4-22

Practice Point: Ordinarily an action based on out-of-state sexual abuse of a child decades ago must be timely under both New York’s Child Victim’s Act and the foreign state’s statute of limitations. However, if the child was a New York resident at the time of the out-of-state abuse, only the extended statute of limitations provided by the Child Victims Act applies.

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s causes of action based upon res ipsa loquitur and vicarious liability for a contractor who constructed the deck should have survived a motion for summary judgment. Plaintiff rented a cottage from defendant. While plaintiff was on the deck, it collapsed:

In New York, in order to establish liability under that doctrine, the plaintiff must establish that the event was: “(1) of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) . . . caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) . . . not . . . due to any voluntary action or contribution on the part of the plaintiff”…. . “The exclusive control requirement . . . is that the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it” … .. “The purpose is simply to eliminate within reason all explanations for the injury other than the defendant’s negligence” … . …

“Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . The “most commonly accepted rationale” for that rule is that “one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor” … . There are, of course, exceptions to the general rule. “A party may be vicariously liable for the negligence of an independent contractor in performing [n]on-delegable duties . . . arising out of some relation toward the public or the particular plaintiff” … . To determine whether a nondelegable duty exists, the court must conduct “a sui generis inquiry” because the court’s conclusion rests on policy considerations … . Although “[t]here are no clearly defined criteria for identifying duties that are nondelegable[,] . . . [t]he most often cited formulation is that a duty will be deemed nondelegable when the responsibility is so important to the community that the employer should not be permitted to transfer it to another” … . Here, we conclude that defendant owes a nondelegable duty to the public to maintain the premises in reasonably safe condition … , and thus that defendant failed to establish as matter of law that she may not be held liable for the actions of her independent contractor … . McGirr v Shifflet, 2022 NY Slip Op 04831, Fourth Dept 8-4-22

Practice Point: Here plaintiff was injured when the deck of the cottage rented from defendant collapsed. Plaintiff’s causes of action based on res ipsa loguitur and vicarious liability for the contractor who built the deck should not have been dismissed. There was a question of fact whether defendant had a nondelegable duty to the public to keep the premises safe, an exception to the general rule that a property owner is not vicariously liable for the acts or omissions of an independent contractor.

The Fourth Department, reversing Supreme Court in this divorce action, determined the postnuptial agreement was not signed under duress and was not unconscionable:

Initially, we conclude that the court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement is voidable on the ground of duress “when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will” … . Generally, “the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing” … . “[T]he threat must be such as to deprive the party of the exercise of free will” … . Here, even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress … .

… [P]laintiff failed to sustain his burden of establishing that the 2017 agreement was unconscionable. “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” … . The fact that defendant was represented by counsel but plaintiff was not is a factor for the court to consider, but is not dispositive … . As relevant here, in the 2017 agreement each party waived his or her rights in the other party’s separate property, which was defined in that agreement. … . …[T]he parties waived any right to receive maintenance. … Plaintiff … signed … three postnuptial agreements during the course of the marriage, and the testimony of both parties revealed that the parties conducted their finances in accordance with the terms of the agreements. … [I]t cannot be said that the 2017 agreement was such that it would “shock the conscience and confound the judgment of any [person] of common sense” … . Campbell v Campbell, 2022 NY Slip Op 04875, Fourth Dept 8-4-22

Practice Point: This decision includes concise descriptions of the criteria for determining whether a postnuptial agreement was signed under duress and whether the agreement is unconscionable.

The Fourth Department, reversing Supreme Court, determined defendants in this traffic accident case were entitled to access to plaintiff-driver’s (Farrell’s) cell phone to determine whether the phone was being used at the time of the accident. There are certain uses of the phone which were not revealed by the cell phone records already provided to defendants:

Although the cell phone records subsequently obtained from the service provider established that Farrell was not talking on his phone at the time of the accident, they did not indicate whether he opened or sent text messages during the relevant time period. On the phone used by Farrell, texts were sent as encrypted “iMessages” that do not show up on phone records. Moreover, the phone records did not indicate whether Farrell was using any applications on his phone, such as Snapchat or Facebook. * * *

Defendants “satisf[ied] the threshold requirement that the[ir] request [was] reasonably calculated to yield information that [was] ‘material and necessary’—i.e., relevant—” to issues involved in the action … . “The test is one of usefulness and reason” … . In support of the motion … defendants submitted evidence that Farrell was traveling at close to 80 miles per hour seconds before the accident, which occurred on a residential road near an elementary school. Defendants also submitted evidence that Farrell did not brake before colliding with the school bus. Evidence concerning whether Farrell was distracted before the collision is relevant to the issues involved in this negligence action, and defendants’ request for production of or access to his cellular phone is reasonably calculated to yield relevant information … , especially considering that Farrell is unable, due to his injuries, to provide any information regarding his activities in the moments before the accident … . Tousant v Aragona, 2022 NY Slip Op 04871, Fourth Dept 8-4-22

Practice Point: Here defendants were entitled to discovery of plaintiff-driver’s cell phone to determine whether plaintiff was using it at the time of the traffic accident. Although defendants had already been provided with the cell-phone records, there are several uses of the phone which are not revealed by the records.

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was not obligated to provide the name of every negligent employee of the defendant Erie County Medical Center Corporation (ECMC) to survive summary judgment in this medical malpractice action:

Contrary to the court’s determination, plaintiff was not required to provide the name of every allegedly negligent actor engaging in conduct within the scope of employment for ECMC … inasmuch as ECMC was on notice of the claims against it based on the allegations in the amended complaint, as amplified by plaintiff’s bill of particulars to ECMC, noting failures and omissions by ECMC’s employees. Indeed, ECMC is in the best position to identify its own employees and contractors and, as the creator of decedent’s medical records, ECMC had notice of who treated decedent and of any allegations of negligence by its nursing staff.  Braxton v Erie County Med. Ctr. Corp., 2022 NY Slip Op 04866, Fourth Dept 8-4-22

Practice Point: In this medical malpractice action, the plaintiff was not required to identify each allegedly negligent employee of the medical center to survive summary judgment.

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiffs-employees were entitled to full payment of their supplemental (fringe) benefits in this Labor Law 220 action seeking the prevailing wage for public works projects:

Plaintiffs are members of a class of employees who allege that defendant failed to pay them prevailing supplemental (or fringe) benefits for work they performed on various public works contracts. * * *

Pursuant to Labor Law § 220 (3) (b), contractors undertaking a public works project must provide their employees with supplemental benefits “in accordance with prevailing practices for private sector work in the same locality” … . Supplemental benefits are defined as “all remuneration for employment paid in any medium other than cash, or reimbursement for expenses, or any payments which are not ‘wages’ within the meaning of the law, including, but not limited to, health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay[,] life insurance and apprenticeship training” (§ 220 [5] [b]). * * *

Consider, for example, a hypothetical contractor that fails to pay prevailing wages (as opposed to benefits) to its employees on a public works project, and then pays the shortfall in wages into a common fund out of which all of its employees are compensated, including those who are not prevailing wage workers. Due to the dilution of funds resulting from those funds also being paid to the nonprevailing wage workers, the employees who worked on the public works contracts would not receive the full wages they would be entitled to for their work on the public works project. Under that scenario, the contractor would clearly have failed to comply with Labor Law § 220 (3) (a), notwithstanding that the contractor paid the same amount in wages to a fund as it would have paid if the prevailing wage workers had been paid directly according to scale. We do not perceive any justification in law or logic for treating supplemental benefits differently from wages. Vandee v Suit-Kote Corp., 2022 NY Slip Op 04852, Fourth Dept 8-4-22

Practice Point: In an action pursuant to Labor Law 220 seeking the prevailing wage for public works projects, the employees are entitled to full compensation for supplemental (fringe) benefits, as well as wages.

The Fourth Department, over a two-justice dissent, determined the evidence was sufficient to support defendant’s conviction of criminal possession of a controlled substance under an accomplice theory. Defendant agreed to go with her friend who was going to sell cocaine. The majority concluded the evidence defendant was going to be compensated proved shared intent. The two dissenters found the evidence defendant was to be compensated was too weak:

Here, the evidence and the reasonable inferences drawn therefrom establish that, two days before her arrest, defendant agreed that, in exchange for compensation, she would either drive or otherwise accompany the friend to complete a sale of cocaine. According to defendant’s testimony, the friend indicated that she wanted defendant to accompany her because they were friends and she did not want to be alone with the two people involved in the proposed drug transaction, i.e., the drug dealer and the ostensible buyer. * * *

From the dissent:

Here, the People’s theory at trial was that defendant intentionally aided her friend’s possession of drugs by agreeing to drive her friend to another city where the friend would engage in the sale of such drugs, and that defendant would return by bus. However, the evidence in this case, when considered in the light most favorable to the People …, established that defendant merely accompanied her friend. People v Lewis, 2022 NY Slip Op 04846, Fourth Dept 8-4-22

Practice Point: Here defendant accompanied a friend who was to sell cocaine, The majority held the evidence of shared intent, which included evidence defendant was to be compensated, proved shared intent. Two dissenters argued the evidence of shared intent was too weak to support the conviction.

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provisions which require passageways to be kept clear of debris applied to electric “stub ups” which protrude from the floor, even though the stub ups are integral parts of the construction, to which those Code provisions do not apply. Apparently the absence of safety markers calling attention to the stub ups was deemed to be covered by those “free of debris” Code provisions:

Although neither subdivision (1) nor (2) of 12 NYCRR 23-1.7(e) applies where the object over which the plaintiff trips is an integral part of construction …, that exception does not apply here. While it is undisputed that the stub up was an integral part of the construction, none of the defendants have pointed to evidence that it was necessary that the stub ups be unmarked or that safety markings or other protective measures would have interfered with the work … . Murphy v 80 Pine, LLC, 2022 NY Slip Op 04811, Second Dept 8-3-22

Practice Point: The Industrial Code provisions requiring passageways to be kept clear of debris do not apply to tripping hazards that are integral parts of construction. Here the electrical stub up over which plaintiff tripped was an integral part of construction. Nevertheless, the Second Department deemed the Code provisions to apply because of the absence of safety markers to alert workers to the location of the stub ups (which protrude from the floor).

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim in this slip and fall case should not have been granted. There was a nine-month delay. There was an incident report prepared on the day of the accident but the Second Department found the report did not notify the city of a potential lawsuit stemming from the accident. The attorney affirmation submitted by the city was speculative and therefore did not demonstrate the city was prejudiced by the failure to timely file the notice of claim. Petitioner did not have a reasonable excuse for failing to timely file. Despite the city’s failure to show prejudice, the petition should have been denied:

… [T]he appellants did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter … . … [A] Yonkers Police Department incident report prepared on the day of the accident by a responding officer did not provide the appellants with actual knowledge of the essential facts constituting the claim. For reports to provide actual knowledge of the essential facts, “one must be able to readily infer from that report that a potentially actionable wrong had been committed” … . A police accident report prepared by a responding officer, establishing knowledge of the accident, generally does not, without more, provide actual knowledge to the municipal defendants of the essential facts underlying the claim against them … . Here, the Yonkers Police Department report indicated that the petitioner stated that she had slipped and fallen while exiting a ramp on the appellants’ property and turning the corner, but there is no identification of the cause of the fall from which negligence on the part of the appellants could be inferred.

The petitioner asserts that there is no prejudice to the appellants’ ability to conduct an investigation inasmuch as the transitory nature of the icy condition would be difficult to investigate whether 90 days later or months later … . In response, the appellants rely upon an attorney affirmation stating that their ability to conduct an investigation was substantially prejudiced by the delay because one of the responding officers retired and might not be available to testify, and the others could not be expected to recall the accident, given the passage of time. This affirmation, based solely on speculation and conjecture, is insufficient for the appellants to rebut the petitioner’s showing of lack of prejudice with particularized evidence in the record … .

Nevertheless, weighing the appropriate factors, the Supreme Court should have denied the petition in light of the lack of reasonable excuse, the time elapsed, and the lack of actual knowledge of the essential facts giving rise to the claim … . Matter of Ortiz v Westchester County, 2022 NY Slip Op 04807, Second Dept 8-3-22

Practice Point: Here an incident report prepared by the police on the day of the slip and fall was deemed not to have provided the city with timely notice of a potential lawsuit. And the fact that the city did not demonstrate it was prejudiced by the delay did not prevent the Second Department from finding the petition for leave to file a late notice of claim should not have been granted.

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should have been granted. The accident alerted the city to the potential lawsuit and the delay was minimal. The absence of a reasonable excuse for the delay was overlooked:

It was readily inferable from a police accident report, a line-of-duty injury report, and witness statements taken on the day of the subject accident “that a potentially actionable wrong had been committed by [an employee of] the public corporation” … . Thus, the defendant was not prejudiced by the petitioner’s delay, which was, in any event, minimal. Accordingly, the court should have granted the petition notwithstanding the lack of a reasonable excuse … . Matter of Dautaj v City of New York, 2022 NY Slip Op 04802, Second Dept 8-3-22

Practice Point: Where a municipal defendant has actual timely notice of a potential lawsuit from an accident report, the delay is not long, and the city suffers no prejudice from the failure to timely file, a petition for leave to file a late notice of claim should be granted even when petitioner does not have a reasonable excuse.

The Second Department determined Supreme Court properly granted defendants’ motion for summary judgment on the Labor Law 240(1) cause of action. Plaintiff fell off an inverted bucket when he was installing stacked washers and dryers. Defendant demonstrated plaintiff did not need to elevate himself to do the work:

According to the plaintiff, on the day at issue, he was standing on an inverted bucket in order to reach the power cable for the stacked washer dryer unit that he had just pushed into the closet before he had plugged in the power cable. The plaintiff contended that the power cable was resting on top of the dryer and was out of reach, and that the washer dryer unit, although on wheels, was difficult to move, so he stood on an inverted bucket to reach the power cable. The plaintiff alleged that the bucket slipped out from under him and he fell and was injured. …

… [T]he plaintiff was the sole proximate cause of his injuries because his conduct unnecessarily exposed him to an elevation-related risk … . The plaintiff’s deposition testimony … established that a ladder was not necessary for the plaintiff to do his work. The plaintiff testified that each of the stacked washer and dryer units that he was installing was on wheels and not secured within the closet in which they were being installed. … [P]rior to the incident, he had installed approximately 20 stacked washer and dryer units without using a ladder. … [W]ith respect to the unit he was installing on the day at issue, in order to reach the power cable, he could have moved the stacked washer and dryer out of the closet rather than stand on an inverted bucket, but he chose not to do so. Morales v 50 N. First Partners, LLC, 2022 NY Slip Op 04801, Second Dept 8-3-22

Practice Point: In this unusual Labor Law 240(1) action, the defendants demonstrated plaintiff did not need to stand on an inverted bucket to do his job. Therefore plaintiff was the sole proximate cause of his fall (from the bucket) and defendants were entitled to summary judgment.

The Second Department, reversing Supreme Court, determined plaintiff-police officer’s (Maldonado’s) action against Domino’s Pizza (DP) as the employer of defendant pizza-delivery-driver (Alum) should have been dismissed. Maldonado pulled Alum over to issue a ticket for a defective headlight. Alum allegedly became violent and injured Maldonado sued DP under vicarious-liability theory negligent hiring-supervision theories. The Second Department held Alum was not acting within the scope of his employment when he resisted arrest, DP demonstrate it did not have knowledge or notice that Alum had a propensity for violence:

… [DP demonstrated] that Allum’s allegedly tortious conduct was not within the scope of his employment. … DP demonstrated that the violent conduct displayed by Allum during the course of receiving a ticket for a defective headlight was not reasonably foreseeable or incidental to the furtherance of DP’s business interests and that Allum was not authorized to use force to effectuate the goals and duties of his employment … . …

… DP demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring and negligent supervision. In this regard, DP demonstrated that it did not have knowledge, or notice, of Allum’s propensity for the violent conduct that resulted in Maldonado’s injury … . Moreover, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Maldonado v Allum, 2022 NY Slip Op 04798, Second Dept 8-3-22

Practice Point: An employer will not be liable for the tortious behavior of an employee unless the employee is acting within the scope of his employment. Here a pizza-delivery driver allegedly resisted arrest after a traffic stop and injured plaintiff police officer. The employer was not liable for the violent behavior of the employee under either a vicarious liability or negligent hiring theory.

The Second Department upheld a jury verdict (reducing it however) in favor of plaintiff who was detained in defendant Home Depot’s store by a Home Depot employee based upon the false allegation plaintiff had assaulted a woman. Plaintiff was detained until the police arrived and then arrested. Plaintiff was a court attorney and was seeking a judicial nomination. Plaintiff was awarded $1.8 million, which the Second Department reduced to $500,000:

The jury, after a trial on the issue of liability, returned a verdict in favor of the plaintiff and against the defendants on the causes of action alleging battery and false imprisonment. …

… False arrest and false imprisonment are two different names for the same common-law tort … . The elements of the tort are intent to confine the plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and the confinement was not otherwise privileged … . “Probable cause is a complete defense to an action alleging . . . false imprisonment” … .

The fact that the police had probable cause to detain the plaintiff based on what Marrugo [the Home Depot employee] told them does not mean that Marrugo had probable cause to detain the plaintiff. Although a civilian complainant generally cannot be found liable for false imprisonment merely for providing information to the police which turns out to be wrong … , a private person can be liable for false imprisonment for actively participating in the arrest such as “‘importuning the authorities to act'” … . The record indicates that the plaintiff would not have been arrested but for Marrugo’s detention of him, and importuning the police to arrest him. Marrugo instigated the arrest, making the police his agents in confining the plaintiff … . Marrugo did so based upon false information that the plaintiff assaulted the female customer with a shopping cart. Wieder v Home Depot U.S.A., Inc., 2022 NY Slip Op 04830, Second Dept 8-3-22

Practice Point: Here a Home Depot employee detained plaintiff until the police arrived based on the false allegation he had assaulted a woman. Plaintiff sued Home Depot and the verdict in plaintiff’s favor was upheld.

The Second Department noted that robbery third is a lesser included offense of robbery second and must be dismissed upon conviction of robbery second:

… [R]obbery in the third degree is a lesser included offense of robbery in the second degree (see CPL 300.30[4] …). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3]). Accordingly, we vacate the conviction of robbery in the third degree and the sentence imposed thereon, and dismiss that count of the indictment … . People v Hardy, 2022 NY Slip Op 04820, Second Dept 8-3-22

Practice Point: Upon conviction of the greater offense, a lesser included offense must be dismissed.

The Second Department determined there was no need for the judge to notify defense counsel of a jury note which did not require any action by the court, Also, jury notes requesting exhibits did not need to be shared with counsel because counsel agreed at the outset of deliberations that the jury could request exhibits:

In the defendant’s view, the Supreme Court’s failure to read note 6 into the record constituted a mode of proceedings error. We disagree.

Note 6 did not request “further instruction or information with respect to the law, [or] with respect to the content or substance of any trial evidence” (CPL 310.30). Nor did it indicate that the jury was deadlocked or struggling to reach a verdict on any or all of the counts submitted to it, or otherwise apprise the court of a significant development in the deliberations … . All the note conveyed was that the jury was continuing to deliberate on all of the charges, and that they were nearing a verdict on the first count in the defendant’s case, as well as the two counts in the codefendant’s case. Plainly, then, there was no action for the Supreme Court to take, and, concomitantly, no input or participation from defense counsel was necessary to ensure that the defendant’s rights were “adequately protect[ed]” … . Note 6 was, in short, not a substantive communication from the jury. People v Edwards, 2022 NY Slip Op 04818, Second Dept 8-3-22

Practice Point: A jury note which does not require action by the judge need not be shared with defense counsel. Here the note informed the judge that they were near a verdict on certain counts.

The Second Department, reversing Supreme Court, determined plaintiff bank did not establish defendants’ default or plaintiff’s standing in this foreclosure action:

… [T]he plaintiff submitted … the affidavit of Christy Vieau, a document execution associate for the plaintiff, who, based upon her review of business records, attested to [defendant’s]  default in payment. While Vieau made the requisite showing that she was familiar with the plaintiff’s record-keeping practices and procedures (see CPLR 4518[a]), she did not identify the records she relied upon, and did not attach them to her affidavit … . Thus, her assertions as to the contents of these records were inadmissible … .

The plaintiff also failed to establish, prima facie, its standing to commence the action. … “A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint” … . A plaintiff may establish its standing by “demonstrating that the note was in its possession prior to the commencement of the action, as evidenced by its attachment of the endorsed note to the summons and complaint at the time the action was commenced” … . Here, the plaintiff contends that it established standing by annexing a copy of the original note, endorsed to it, to the complaint. However, there is no copy of an endorsed note attached to the complaint. Rather, the copy of the note attached to the complaint states that it is an electronic document with an electronic transfer history, a fact wholly unaddressed by the plaintiff … . Nationstar Mtge., LLC v Koznitz I, LLC, 2022 NY Slip Op 04813, Second Dept 8-3-22

Practice Point: Many foreclosure summary judgment awards are reversed because the bank did not attached the documents referenced in its papers. Here the documents supporting defendants’ alleged default and the bank’s standing were missing and summary judgment was reversed.

The First Department determined plaintiff’s legal malpractice complaint was properly dismissed for failing to allege that “but for” the attorney’s negligence plaintiff would have prevailed:

Supreme Court properly dismissed plaintiff’s legal malpractice cause of action in the original complaint because he failed to allege that “but for” defendant’s negligent conduct, he would have prevailed in the underlying action … . Plaintiff’s citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint … . Markov v Barrows, 2022 NY Slip Op 04780, First Dept 8-2-22

Practice Point: To sufficiently allege legal malpractice, the complaint must allege that “but for” the attorney’s negligence plaintiff would have prevailed.

The First Department, in a full-fledged opinion by Justice Pitt, reversing the SORA court, in a matter of first impression, determined that where defendant asserted his innocence at trial, has a pending appeal, and has asserted his right to avoid self-incrimination, he should not be assessed points under risk factor 12 for failing to take responsibility for the relevant offense:

… [W]e conclude that a defendant who has invoked his Fifth Amendment right against self-incrimination and has a direct appeal pending should not be assessed points under risk factor 12. Considering this conclusion, and in view of defendant’s consistent refusal to incriminate himself and the pending status of his direct appeal, the assessment of 10 points under this factor amounts to a violation of defendant’s Fifth Amendment rights. * * *

… [D]efendant was forced to choose between, on the one hand, exercising his Fifth Amendment right against self-incrimination and being assessed points under risk factor 12, and, on the other, admitting responsibility for the acts that led to his conviction after so far maintaining his innocence and risking that those admissions would be used against him in a potential retrial or form the basis of a perjury charge. Ultimately, the penalty imposed on defendant when presented with this choice is that he was assessed 10 points under risk factor 12 and adjudicated a risk level two sex offender.

The difference between a level one and level two sex offender adjudication is substantial and illustrative of why the penalty is so great as to compel self-incrimination. If defendant were classified as a level one sex offender, he would be required to register annually for a period of 20 years from the date of initial registration (see Correction Law § 168-h), but his personal information would not be listed in a publicly available database. However, as a level two sex offender, defendant would be required to register annually for life (see Correction Law § 168-h), and his photograph, address, place of employment, physical description, age, and distinctive markings would be included in a public database (see Correction Law § 168-q). People v Krull. 2022 NY Slip Op 04783, First Dept 8-2-22

Practice Point: Here defendant asserted his innocence at trial, had a pending appeal and asserted his right against self-incrimination in the SORA proceedings. The SORA court should not have assessed points under risk factor 12 for failure to take responsibility for the offense.