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ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT).

The Second Department determined the causes of action brought by a minority shareholder in a limited liability company (LLC) were derivative in nature. The complaint was filed in 2012 and plaintiff withdrew from the LLC in 2015. Therefore plaintiff lacked standing to sue:

[Plaintiff] first cause of action sought an accounting, his second cause of action sought damages for breach of fiduciary duty, his third cause of action sought the appointment of a receiver … , his fourth cause of action sought the imposition of a constructive trust, and his fifth cause of action was to recover damages for waste. …

“[M]embers of a limited liability company (LLC) may bring derivative suits on the LLC’s behalf” … . In a derivative suit, “[t]he remedy sought is for wrong done to the corporation; the primary cause of action belongs to the corporation; [and] recovery must enure to the benefit of the corporation”… . In the context of a corporation, “the standing of the shareholder is based on the fact that . . . he [or she] is defending his [or her] own interests as well as those of the corporation” … . “Where the plaintiff voluntarily disposes of the stock, his [or her] rights as a shareholder cease, and his [or her] interest in the litigation is terminated. Being a stranger to the corporation, the former stockowner lacks standing to institute or continue the suit” … . The same is true in the context of an LLC. In order to maintain a derivative cause of action, a plaintiff must be a member of the LLC … . Thus, the Supreme Court properly held that, once the plaintiff withdrew from WIC, he lost standing to maintain any derivative causes of action on behalf of the company, notwithstanding his possible right to a future payment for the value of his membership interest upon his withdrawal … . Jacobs v Cartalemi, 2017 NY Slip Op 08506, Second Dept 12-6-17

CORPORATION LAW (LIMITED LIABILITY COMPANY, DERIVATIVE LAWSUITS, ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT))/LIMITED LIABILITY COMPANY LAW (DERIVATIVE LAWSUITS, ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT))/DERIVATIVE LAWSUITS (LIMITED LIABILITY COMPANY LAW, ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT))

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ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT).

The Third Department, in a comprehensive “offer and acceptance” decision too detailed to fairly summarize here, determined that the defendant’s motion for summary judgment in this breach of a real estate contract action was properly granted on statute of frauds grounds. Although a typed name on an email is the equivalent of a signature, the same is not true for an attachment to an email, which can easily be signed by the sender. Here plaintiff’s breach of contract theory depended upon an attachment to an email sent by the defendant to the plaintiff. Because the attachment was not signed, there was no contract:

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Under ESRA [Electronic Signatures and Records Act}, plaintiff would have a viable argument that defendant signed the emails she sent, as they are electronic records and she typed her name at the end of each. As confirmed at oral argument, however, plaintiff does not contend that the emails constituted signed documents forming the contract, but that defendant’s typed name at the end of the proposed side letter constituted her signature. That document was separately typed and attached to emails for transmission. Although emails are electronic records, not every attachment to an email qualifies as an electronic record under ESRA. One of the purposes of ESRA is “to promote the use of electronic technology in the everyday lives and transactions” of government entities, businesses and average citizens… . To fulfill this purpose, it was necessary for the Legislature to permit emails to be considered equivalent to signed writings when that was the sender’s intent … , because it was not possible to place a handwritten signature on an email or similar electronic record that was being transmitted electronically.

The same logic does not apply to ordinary typed documents that are scanned and attached to emails, because a party could easily affix a handwritten signature to those documents. Solartech Renewables, LLC v Vitti, 2017 NY Slip Op 08574, Third Dept 12-6-17

 

CONTRACT LAW (STATUTE OF FRAUDS, EMAILS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/STATUTE OF FRAUDS (EMAILS, ATTACHMENTS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/EMAILS (CONTRACT LAW, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/ATTACHMENTS (EMAILS, CONTRACT LAW, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))/ELECTRONIC SIGNATURES AND RECORDS ACT (CONTRACT LAW, EMAILS, STATUTE OF FRAUDS, ALTHOUGH A TYPED NAME ON AN EMAIL MAY SUFFICE AS A SIGNATURE FOR STATUTE OF FRAUD PURPOSES, THE SAME IS NOT TRUE FOR AN ATTACHMENT TO AN EMAIL, WHICH CAN EASILY BE SIGNED BY THE SENDER (THIRD DEPT))

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BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with the court’s order to move for summary judgment within 60 days could not be the basis for dismissal for neglect to prosecute, which requires a 90-day notice:

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“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” … . The September order could not be deemed a 90-day demand pursuant to CPLR 3216 because it gave US Bank only 60 days within which to file a motion for summary judgment (see CPLR 3216[b][3]). Since the dismissal order … , merely effectuated the September order, which did not meet the statutory preconditions set forth in CPLR 3216, there was a failure of a condition precedent, and the Supreme Court was not authorized to dismiss the action on its own motion … . In any event, there was no evidence that the plaintiff intended to abandon the action, that the default was willful, or that the defendants were prejudiced … . US Bank, N.A. v Mizrahi, 2017 NY Slip Op 08548, Second Dept 12-6-17

 

CIVIL PROCEDURE (NEGLECT TO PROSECUTE, BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/NEGLECT TO PROSECUTE (BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/FORECLOSURE (NEGLECT TO PROSECUTE, BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/CPLR 3216 (NEGLECT TO PROSECUTE, BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))

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DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT).

The Second Department determined Supreme Court had jurisdiction to rule on a dispute among members of a religious corporation (Mandir). The dispute involved whether votes were cast by persons ineligible to vote for the board of trustees. The dispute could be resolved without the court’s intrusion into religious issues:

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“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” … . However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … .. In applying neutral principles of law, “courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine”… .

Here, resolution of the instant dispute, including determining whether any votes were cast by individuals who were not eligible to vote in the election, does not “require[ ] intrusion into constitutionally protected ecclesiastical matters”… .. Rather, this question may be resolved based upon neutral principles of law and reference to the secular provisions of the Mandir’s internal documents … . Queens Branch of the Bhuvaneshwar Mandir, Inc. v Sherman, 2017 NY Slip Op 08546, Second Dept 12-6-17

 

CIVIL PROCEDURE (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/RELIGION (CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CORPORATION LAW (RELIGIOUS CORPORATION, CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))

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PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT).

The Second Department determined plaintiff’s family to comply with discovery demands and a conditional order warranted dismissal of the complaint pursuant to CPLR 3126:

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If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action (see CPLR 3126[3]). “While actions should be resolved on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party’s] failure to comply with a disclosure order was the result of willful and contumacious conduct” … .

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Here, the willful and contumacious character of the plaintiff’s actions can be inferred from its repeated failure to respond adequately to the defendant’s notice for discovery and inspection and interrogatories, and the absence of any adequate explanation for its failure to timely comply with those requests, or the deadline set forth in the preliminary conference order… .

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When the plaintiff failed to provide full and complete responses to the defendant’s discovery demands within the specified time, the conditional order became absolute … . To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiff was required to demonstrate a reasonable excuse for its failure to provide full and complete responses to the defendant’s discovery demands and that its cause of action was potentially meritorious … . The plaintiff’s submission of an unsworn and unsigned affidavit from its owner did not demonstrate either. Corex-SPA v Janel Group of N.Y., Inc., 2017 NY Slip Op 08502, Second Dept 12-6-17

 

CIVIL PROCEDURE (DISCOVERY, PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/DISCOVERY (CIVIL PROCEDURE, PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/CPLR 3126 (DISCOVERY,  PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))

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HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT).

The Second Department, in upholding a fine imposed upon a bar by the NYS Liquor Authority relating to an altercation, the court explained the use of hearsay in an administrative proceeding:

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“Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence” … . Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . It is “[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt” … . ” The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable'” … . The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible… . Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency’s determination, unless it is seriously controverted … . Matter of Bracco’s Clam & Oyster Bar, Inc. v New York State Liq. Auth., 2017 NY Slip Op 08516, Second Dept 12-6-17

 

ADMINISTRATIVE LAW (HEARSAY, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))/HEARSAY (ADMINISTRATIVE LAW, HEARSAY IS ADMISSIBLE IN ADMINISTRATIVE PROCEEDINGS AND MAY CONSTITUTE THE SOLE BASIS FOR A DETERMINATION (SECOND DEPT))

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QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this elevator accident case was properly denied. The elevator fell from the 20th to the 11th floor. Although defendant demonstrate a lack of notice, there was a question of fact under the doctrine of res ipsa loquitur:

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Plaintiff submitted evidence to support each of the elements of res ipsa loquitur, namely “(1) that the occurrence would not ordinarily occur in the absence of negligence, (2) that the injury was caused by an agent or instrumentality within the exclusive control of defendant, and (3) that no act or negligence on the plaintiff’s part contributed to the happening of the event” … .

The testimony of plaintiff, together with that of a witness who was in the elevator with her when the elevator allegedly dropped, is sufficient to raise an issue of fact as to whether the elevator did in fact drop suddenly … . A free-fall or sudden drop of an elevator does not ordinarily happen in the absence of negligence … . We reject, as we have previously, defendant’s argument that it lacked exclusive control of the elevator because a passenger in the elevator activated the emergency stop button and jumped to try to stop the free fall once the elevator suddenly dropped … . Although it is not necessary to consider the affidavit of plaintiff’s expert witness, we note that plaintiff’s testimony is also supported by the opinion of her expert, who explained how the accident could have occurred as plaintiff described. The expert affidavit is properly part of the appellate record since it was submitted by defendant and expressly incorporated by plaintiff into her opposition papers. Colon v New York City Hous. Auth., 2017 NY Slip Op 08463, First Dept 12-5-17

 

NEGLIGENCE (QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT))/RES IPSA LOQUITUR (ELEVATOR ACCIDENT, QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT))/ELEVATOR ACCIDENTS (RES IPSA LOQUITUR, QUESTION FACT ABOUT THE APPLICABILITY OF THE RES IPSA LOQUITUR DOCTRINE IN THIS ELEVATOR ACCIDENT CASE (FIRST DEPT))

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, HEAVY ROLL OF WIRE FELL BECAUSE OF ABSENCE OF A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured when a heavy roll of wire fell as it was being moved up a ramp made of planks in a loading area:

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Plaintiff established entitlement to judgment as a matter of law on the issue of liability where he was injured during the course of his employment when a reel of electrical wire weighing 500 to 1,000 pounds fell and struck his foot. Workers were rolling the reel up two wooden planks for loading onto a van when it fell, and although there are questions as to whether plaintiff was actually involved in moving the reel, plaintiff demonstrated that he sustained injuries from the falling reel due to absence of an adequate safety device… .

Defendants and third-party defendants (collectively defendants) fail to raise a triable issue of fact. They contend that issues exist as to whether a forklift was available onsite, and whether plaintiff was a recalcitrant worker for failing to use it despite being aware of it… . However, even if a forklift was available and plaintiff was aware of it, defendants have not offered evidence showing that he was actually instructed to use it… . Rather, it is undisputed that plaintiff’s foreman had instructed the workers to move the reel as they did, and to the extent defendants rely on the testimony of plaintiff’s employer that plaintiff was not to blindly follow the foreman’s instructions, such overlooks the realities of construction work … .

Nor is there a triable issue as to whether plaintiff was the sole proximate cause of the accident. Even assuming that plaintiff did assist in moving the reel and in the course of doing so, removed his hand from the reel, such was not the sole proximate cause of the accident, as he was not provided with an adequate safety device to hoist the reel in the first instance … .

The contention that Labor Law § 240(1) is inapplicable because the loading of the reel did not fall within the scope of construction work, is unavailing. Although it was not actual construction work, and occurred in the loading area of the construction site, it was still part of the construction project … . Gutierrez v 451 Lexington Realty LLC, 2017 NY Slip Op 08475, First Dept 12-5-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, HEAVY ROLL OF WIRE FELL BECAUSE OF ABSENCE OF A SAFETY DEVICE (FIRST DEPT))

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QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined a question of fact precluded summary judgment on the Labor Law 240 (1) cause of action. Plaintiff was struck by falling bricks outside a building. If the bricks fell accidentally, Labor Law 240 (1) would cover the injury, if the bricks were deliberately dropped, Labor Law 240 (1) would not cover the injury. In addition, the Labor Law 241 (6) cause of action was deemed properly dismissed because the incident occurred outside the building:

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Plaintiff was allegedly struck by falling bricks while working near one of four connected buildings on a construction site. The motion court correctly denied both plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and defendants’ motion for summary judgment dismissing that claim, as there are issues of fact about whether the bricks fell accidently or were deliberately dropped by demolition workers. If the latter, then the bricks did not constitute falling objects pursuant to Labor Law § 240(1) … . …

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The motion court correctly dismissed the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-3.3(g), based on plaintiff’s testimony that his accident occurred outside rather than “within [a] building” (12 NYCRR 23-3.3[g]). Torres v Love Lane Mews, LLC, 2017 NY Slip Op 08467, First Dept 12-5-17

 

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT))

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SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT).

The First Department determined the proof of the “substantial pain” element of assault third was sufficient to support conviction:

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The verdict was supported by legally sufficient evidence and was not against the weight of the evidence … . There is no basis for disturbing the jury’s credibility determinations. The jury reasonably believed that defendant intended to forcibly take the victim’s property when he hit the victim in the head and immediately grabbed at his pocket … .

There was also ample proof of physical injury, because the victim testified that due to the severe pain in his mouth, it was difficult for him to open his mouth for two days, and he could not eat during that time… .. The statutory element of “substantial pain” may be satisfied by relatively minor injuries causing moderate, but “more than slight or trivial pain”…, even in the absence of any medical treatment … . People v Cordero, 2017 NY Slip Op 08466, First Dept 12-5-17

 

CRIMINAL LAW (ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/ASSAULT (CRIMINAL LAW, SUBSTANTIAL PAIN, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/SUBSTANTIAL PAIN (ASSAULT THIRD, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ASSAULT, SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT))

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