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CORPORATE OFFICER COULD BE PERSONALLY LIABLE FOR CONVERSION AND FRAUD, CAUSES OF ACTION AGAINST THE OFFICER PERSONALLY SHOULD NOT HAVE BEEN DISMISSED AS SHIELDED BY THE CORPORATE STRUCTURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant (Cina), an officer of defendant corporation (Artisan), could be held personally liable for his tortious acts. Supreme Court had held the corporate structure insulated Cina from personal liability. It was alleged Cina misrepresented that limestone had been stolen, inducing plaintiff to purchase replacement limestone:

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“A director or officer of a corporation does not incur personal liability for its torts merely by reason of his [or her] official character” … , and thus, cannot be liable for torts “attributable to the corporation if he [or she] did not participate in and was not connected with the acts in any manner” … . However, ” [a] corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate veil is pierced'” … .

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Here, the Supreme Court incorrectly directed the dismissal of the causes of action alleging conversion and fraud insofar as asserted against Cina on the ground that there was “no basis on which to pierce the corporate veil.” The complaint adequately alleged that Cina participated in the act allegedly constituting conversion by asserting that Cina arranged to have the replacement limestone delivered to [another party] instead of the plaintiff, and that he participated in the alleged fraud by knowingly misrepresenting the facts regarding the delivery of the original limestone, with the intent of inducing the plaintiff’s detrimental reliance. That Cina’s alleged conduct may have been committed “on behalf of the corporation in the course of official duties” does not prevent liability from being imposed upon him … . North Shore Architectural Stone, Inc. v American Artisan Constr., Inc., 2017 NY Slip Op 06655, Second Dept 9-27-17

 

CORPORATION LAW (CORPORATE OFFICER COULD BE PERSONALLY LIABLE FOR CONVERSION AND FRAUD, CAUSES OF ACTION AGAINST THE OFFICER PERSONALLY SHOULD NOT HAVE BEEN DISMISSED AS SHIELDED BY THE CORPORATE STRUCTURE (SECOND DEPT))/INTENTIONAL TORTS (CORPORATE OFFICERS, PERSONAL LIABILITY, CORPORATE OFFICER COULD BE PERSONALLY LIABLE FOR CONVERSION AND FRAUD, CAUSES OF ACTION AGAINST THE OFFICER PERSONALLY SHOULD NOT HAVE BEEN DISMISSED AS SHIELDED BY THE CORPORATE STRUCTURE (SECOND DEPT))/FRAUD (CORPORATE OFFICERS, PERSONAL LIABILITY, CORPORATE OFFICER COULD BE PERSONALLY LIABLE FOR CONVERSION AND FRAUD, CAUSES OF ACTION AGAINST THE OFFICER PERSONALLY SHOULD NOT HAVE BEEN DISMISSED AS SHIELDED BY THE CORPORATE STRUCTURE (SECOND DEPT))/CONVERSION (CORPORATE OFFICERS, PERSONAL LIABILITY, CORPORATE OFFICER COULD BE PERSONALLY LIABLE FOR CONVERSION AND FRAUD, CAUSES OF ACTION AGAINST THE OFFICER PERSONALLY SHOULD NOT HAVE BEEN DISMISSED AS SHIELDED BY THE CORPORATE STRUCTURE (SECOND DEPT))/OFFICERS (CORPORATE OFFICER COULD BE PERSONALLY LIABLE FOR CONVERSION AND FRAUD, CAUSES OF ACTION AGAINST THE OFFICER PERSONALLY SHOULD NOT HAVE BEEN DISMISSED AS SHIELDED BY THE CORPORATE STRUCTURE (SECOND DEPT))

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COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cooperative board should not have given the owner of a second-floor cooperative apartment (Haffey) permission to construct a second floor terrace without the consent of the investor-owner of the first-floor cooperative apartment. The cooperative’s guidelines, which can be waived, required the first-floor owner’s consent to the construction of a second-floor terrace. The board’s decision singled out investor-owners for different treatment and cannot be justified under the business judgment rule. The court noted the board’s determination is properly the subject of an Article 78 proceeding:

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… [In] “the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'” … . “To trigger further judicial scrutiny, an aggrieved shareholder-tenant must make a showing that the board acted (1) outside the scope of its authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith”… . “[T]he broad powers of cooperative governance carry the potential for abuse when a board singles out a person for harmful treatment or engages in unlawful discrimination, vendetta, arbitrary decision making and favoritism” … .

… [T]he board’s determination to dispense with the consent requirement and allow Haffey to erect the subject terrace without the petitioner’s consent was not protected by the business judgment rule. By dispensing with the petitioner’s consent, and, more generally, the consent of first-floor shareholders-tenants who do not reside in the building, the board deliberately singled out the petitioner, as well as tenant-shareholders who do not reside on the premises, for harmful treatment and engaged in favoritism toward tenants-shareholders who resided on the premises. As such, the petitioner established that the board’s determination to dispense with his consent did not legitimately further the corporate purpose and was made in bad faith … . Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2017 NY Slip Op 06645, Second Dept 9-27-17

 

COOPERATIVES (COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))/CIVIL PROCEDURE (ARTICLE 78, COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))/BUSINESS JUDGMENT RULE (COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))

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POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT). 

The First Department, reversing Supreme Court, determined the action against a police officer whose police car struck plaintiff should have been dismissed. Plaintiff was standing in the road at the double yellow lines when the officer, responding to an emergency call, moved over the double yellow line:

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Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104, by submitting evidence that the officer was responding to a radio call about a “man with a gun” when her police vehicle struck plaintiff … . Defendants’ evidence also showed that the officer was engaged in conduct privileged under the statute at the time of the accident, since her vehicle straddled and then crossed the double yellow lines, in disregard of regulations “governing directions of movement” (VTL § 1104[b][4]). Accordingly, defendants demonstrated that the officer’s conduct is to be assessed under the statute’s “reckless disregard” standard… .

Defendants further demonstrated that the officer did not operate the police vehicle in reckless disregard for the safety of others … . The officer testified that traffic warranted moving her vehicle left and operating it on the double yellow lines to avoid the stopped vehicles to her right and ahead of her. The officer had no duty to engage her sirens or lights, as she was operating a police vehicle, and her failure to do so was not evidence of recklessness …. Moreover, the officer testified that she attempted to avoid plaintiff, who was standing on the double yellow lines, by swerving behind her, an assertion that plaintiff supported with her own testimony … .

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In opposition, plaintiff failed to present evidence showing that there was no emergency, and failed to raise an issue of fact as to whether the officer acted in reckless disregard for the safety of others. Green v Zarella, 2017 NY Slip Op 06599, First Dept 9-26-1

 

NEGLIGENCE (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (POLICE OFFICERS, RECKLESS DISREGARD, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/RECKLESS DISREGARD (VEHICLE AND TRAFFIC LAW, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT).

The First Department determined defendant-bicyclist’s (Cook’s) employer (AGI) was not vicariously liable for the bicyclist’s actions. Cook was riding his own bicycle on his own time when he struck and killed plaintiff. Cook worked as a bicycling coach for AGI. The court also found that the negligent hiring and retention cause of action was properly dismissed:

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The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI … .

Cook’s unsupported belief, as set forth in an affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action … , do not create triable issues of fact as to whether Cook was acting in the scope of employment … . …[T]here is no indication that AGI was exercising any control over Cook at the time of the accident … .

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The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention … , and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment … . Fein v Cook, 2017 NY Slip Op 06603, First Dept 9-26-17

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NEGLIGENCE (DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT))/EMPLOYMENT LAW (VICARIOUS LIABILITY, DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT))

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DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant demonstrated it took adequate measures to keep the floor free of water and the area where plaintiff fell was inspected ten minutes before the slip and fall. Defendant Roza 14W’s motion for summary judgment should have been granted:

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Plaintiff Frank Kelly was allegedly injured when he slipped and fell on water on the marble floor in the lobby of Roza 14W’s building. It was snowing lightly at the time of the accident and the floor had mats in various locations, but not in the area where plaintiff slipped.

Roza 14W made a prima facie showing that a reasonable cleaning routine was followed on the day of the accident … . Roza 14W submitted evidence that, in addition to the mats, wet floor warning signs were placed in the lobby, two porters were assigned to walk around the lobby to dry mop wet areas, and the area where plaintiff fell was found to be clean and dry 10 minutes before the fall.

Plaintiffs failed to submit evidence sufficient to raise a triable issue of fact. Roza 14W was not obligated to either continuously mop up moisture tracked onto its floor… or to cover the entire floor with mats … . In addition, the affidavit of plaintiffs’ expert failed to cite any violation of an accepted industry practice, standard, code, or regulation …. . Kelly v Roza 14W LLC, 2017 NY Slip Op 06630, First Dept 9-26-17

 

NEGLIGENCE (DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRACKED IN WATER (SLIP AND FALL, DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT).

The First Department determined plaintiff was properly granted summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged he was not provided with a ladder and was instructed to climb up the side of a bridge, from which he fell. The defendants’ claim that plaintiff was at fault because of his size is of no consequence because comparative fault is not a defense:

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Plaintiff made a prima facie showing that Labor Law § 240(1) was violated, and that the violation was a proximate cause of his injury … . He testified that onsite supervisors gave him a work assignment requiring him to work from the top of a sidewalk bridge, thereby exposing him to elevation-related risks covered under Labor Law § 240(1). He further stated that he was not provided with a ladder or any other safety device; was instructed to access the top of the bridge by climbing up its side; and that, while attempting to do so, he lost his grip, slipped, and fell to the ground. * * *

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Defendants’ recalcitrant worker defense fails, since there is no indication that they instructed plaintiff to use a ladder or informed him that a ladder or other safety device was located at the sidewalk bridge … .

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Defendants’ contention that plaintiff fell from the sidewalk bridge as a result of his “carelessness” and “bad decisions,” and because of his size, is unavailing. Any comparative negligence by plaintiff is not a defense to his Labor Law § 240(1) claim … . Cardona v New York City Hous. Auth., 2017 NY Slip Op 06620, First Dept 9-26-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT))

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INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL DETERMINE WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT).

The First Department, reversing Supreme Court, determined an attorney who worked for defendant insurer must be deposed to ascertain his role in an investigation of a fire at plaintiffs’ property and the denial of coverage. Based on the deposition, Supreme Court will address what portions of the insurer’s files, including the attorney’s, are discoverable by plaintiffs:

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“[T]he CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney’s work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means CPLR 3101 [d][2]” … . “[I]n order for attorney-client communications to be privileged, the document must be primarily or predominantly a communication of a legal character” … . …

“Reports of insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurance company’s business” … . “Furthermore, attorney work product applies only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer’s learning and professional skills, such as those reflecting an attorney’s legal research, analysis, conclusions, legal theory or strategy” … . “Documents prepared in the ordinary course of an insurance company’s investigation to determine whether to accept or reject coverage and to evaluate the extent of a claimant’s loss are not privileged and are, therefore, discoverable. In addition, such documents do not become privileged merely because an investigation was conducted by an attorney” … . Venture v Preferred Mut. Ins. Co., 2017 NY Slip Op 06594, First Dept 9-26-17

 

INSURANCE LAW (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/ATTORNEYS  (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/CIVIL PROCEDURE (DISCOVERY, ATTORNEYS, INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/DISCOVERY (INSURANCE LAW, ATTORNEYS, (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))

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PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT).

The First Department, in an extensive opinion by Justice Friedman, determined plaintiff’s age discrimination and breach of contract causes of action should be dismissed. Plaintiff’s position at a medical school was eliminated as part of a phasing out of her department and her age was not demonstrated to be a factor in the decision-making process. In addition, the breach of contract cause of action was based on a provision in the faculty handbook which did not apply to plaintiff:

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In this action for age discrimination in violation of the New York City Human Rights Law (NYCHRL) … and for breach of contract, plaintiff, a former member of the radiology department of defendant medical school and hospital, challenges defendant’s decision not to renew her employment at the expiration of the term of her last appointment. Although Supreme Court assumed (as do we) that plaintiff carried her “de minimis” burden of establishing a prima facie case of age discrimination … , the court correctly determined that plaintiff, in response to defendant’s evidence of legitimate, nondiscriminatory reasons for the challenged employment action, failed to present any evidence raising a triable issue as to whether bias against employees of her age played a role in that decision … .

… [D]efendant established that the non-specialized section of the radiology department in which plaintiff worked, which produced no research, was phased out as part of a restructuring of the department, at a time of financial constraint, to achieve greater focus on the specialized, research-producing sections of the department. Defendant further established that, as part of this restructuring, it retained three physicians from plaintiff’s section, each of whom was of approximately the same age as plaintiff (60), and reassigned them to specialized departments. Plaintiff, however, was reasonably deemed to lack the specialized expertise and the proclivity for research that defendant deemed necessary to maintain its status as a top-tier academic radiology department. Not only did plaintiff fail to present any evidence casting doubt on this explanation, she failed to present any evidence, either direct or circumstantial, suggesting that bias against employees of her age was even a partial motive for the ending of her employment. Hamburg v New York Univ. Sch. of Medicine, 2017 NY Slip Op 06635, First Dept 9-26-17

 

EMPLOYMENT LAW (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))/HUMAN RIGHTS LAW (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))/AGE DISCRIMINATION (PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT))

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JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s arson second conviction, determined the jury should have been instructed on the lesser included offense of arson fourth:

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The relevant difference between these crimes in this case is that second-degree arson involves intentionally damaging a building by starting a fire, while fourth-degree arson involves recklessly damaging a building by intentionally starting a fire … . Viewed in the light most favorable to defendant, there was a reasonable view of the evidence that he did not intend to damage his apartment, or any other part of the building, by setting a fire to a video game console, and that his sole object in doing so was to kill himself through smoke inhalation. It cannot be said that the only interpretation of defendant’s actions was that he intended to damage the building by fire. Although a natural and probable consequence of setting the fire was that the fire would damage the building, this did not conclusively establish such an intent, which was for the jury to decide … . On these facts, the jury could have found that, rather than actually intending to cause damage, defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that [damage would] occur” … . People v Acevedo, 2017 NY Slip Op 06626, First Dept 9-26-17

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ARSON, JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSE (ARSON, JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/ARSON (JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))

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FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the for cause challenge to a jury should have been granted. The juror exhibited a bias in favor of the credibility of police officers:

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The court should have granted defendant’s challenge for cause to a prospective juror, a police officer who stated on voir dire that he believed that the testimony of police witnesses would be accurate, except insofar as they were relaying inaccurate information provided by a victim or other witness. Pressed by defense counsel on whether he thought it was possible for a police witness to lie, exaggerate, or be mistaken, the prospective juror allowed that there was “a little room” for this and stated that he “suppose[d]” it was possible.

“[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . Bias expressed by a prospective juror is purged only when, in response to additional inquiry, the juror is able to “voice[] with conviction” that he or she will be able to render an impartial verdict based solely on the evidence and the court’s instructions … . The link between the biased state of mind previously indicated by the prospective juror’s statements and the assurance of the ability to render an impartial verdict “must be evident” … . “Where there remains any doubt in the wake of such statements, . . . the prospective jurors should be discharged for cause” … .

The panelist clearly showed a predisposition to believe that police officers testify truthfully … . Viewed as a whole, his responses to followup questions did not “expressly state that his prior state of mind . . . [would] not influence his verdict” … . People v Whitefield, 2017 NY Slip Op 06618, First Dept 9-26-17

 

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT))/FOR CAUSE JUROR CHALLENGE  (FOR CAUSE CHALLENGE TO JUROR WHO EXPRESSED BIAS IN FAVOR OF THE CREDIBILITY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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