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HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION PROPERLY DENIED, HOMEOWNER DID NOT DEMONSTRATE HE DID NOT CONTROL AND SUPERVISE PLAINTIFF’S WORK OR DID NOT CREATE OR WAS NOT AWARE OF THE DANGEROUS CONDITION.

The Second Department determined defendant homeowner’s motion for summary judgment on the Labor Law 240(1), 241(6) and 200 causes of action were properly denied. Defendant did not demonstrate he did not control and supervise plaintiff’s work and he did not demonstrate he did not create or was not aware of the dangerous condition. Therefore the motion was properly denied without reference to plaintiff’s opposing papers:

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“Labor Law §§ 240 and 241 provide an exemption for owners of single and two-family houses such that liability can only be imposed where the homeowner directs or controls the work being performed” … . “In this regard, the phrase direct or control’ is to be strictly construed and, in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee” … . Here, the proof submitted in support of the defendant’s motion for summary judgment raises triable issues of fact as to whether he exercised the requisite degree of direction and control over the injury-[*2]producing method of work so as to impose liability under Labor Law §§ 240(1) and 241(6) … . * * *

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“[W]hen a worker at a job site is injured as a result of a dangerous or defective premises condition, a property owner’s liability under Labor Law § 200 and for common-law negligence rests upon whether there is evidence that the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition” … . “[W]hen a worker at a job site is injured as a result of dangerous or defective equipment used in the performance of work duties, the property owner’s liability under Labor Law § 200 and for common-law negligence rests upon whether the property owner had the authority to supervise or control the means and methods of the work”… . Where, as here, “an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards” … . Wadlowski v Cohen, 2017 NY Slip Op 03797, 2nd Dept 5-10-17

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LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION PROPERLY DENIED, HOMEOWNER DID NOT DEMONSTRATE HE DID NOT CONTROL AND SUPERVISE PLAINTIFF’S WORK OR DID NOT CREATE OR WAS NOT AWARE OF THE DANGEROUS CONDITION)

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DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL WAS NOT DESIGNED TO PROTECT AGAINST FALLS AND THEREFORE WAS NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLAINTIFF NOT ENGAGED IN CONSTRUCTION, DEMOLITION OR EXCAVATION, THEREFORE LABOR LAW 241 (6) NOT APPLICABLE.

The Second Department determined plaintiff’s Labor Law 240 (1) cause of action was properly dismissed because, although he fell when getting out of an aerial bucket, the bucket was not extended and his injury was not related to the failure of a safety device designed to prevent falls. Plaintiff alleged he fell from the bucket because his foot got caught in an electrical device inside the bucket from which the cover was missing. In addition, the Labor Law 241 (6) cause of action was properly dismissed because plaintiff was not involved in construction, demolition or excavation at the time of the injury (he was hired to place an antenna on a utility pole):

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… [T]he bucket truck from which the injured plaintiff fell was not defective or inadequate insofar as it related to providing him with fall protection … . Although the dielectric liner was missing from the bucket, the injured plaintiff’s own deposition testimony was that this device was designed to protect workers from electrical shocks, and not falls. Therefore, its absence did not constitute a failure to protect pursuant to Labor Law § 240(1) … . …

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Further, the … defendants established, prima facie, that the work the injured plaintiff was performing at the time of the accident did not involve construction, demolition, or excavation and, accordingly, that Labor Law § 241(6) does not apply … . Robinson v National Grid Energy Mgt., LLC, 2017 NY Slip Op 03787, 2nd  Dept 5-10-17

 

LABOR LAW-CONSTRUCTION LAW (DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL WAS NOT DESIGNED TO PROTECT AGAINST FALLS AND THEREFORE WAS NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLAINTIFF NOT ENGAGED IN CONSTRUCTION, DEMOLITION OR EXCAVATION, THEREFORE LABOR LAW 241 (6) NOT APPLICABLE)

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REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 90-DAY NOTICE REQUIREMENT FOR FORECLOSURE PROCEEDINGS NOT MET, PROOF OF MAILING INSUFFICIENT.

The Second Department, reversing Supreme Court, determined the 90 notice requirement of Real Property Actions and Proceedings Law (RPAPL) for foreclosure proceedings was not met:

Here, contrary to the Supreme Court’s determination, the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304. The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the appellant pursuant to the terms of the statute … . Contrary to the plaintiff’s contention, the affidavit of a vice president for loan documentation of the loan servicer, which referenced purported tracking numbers stamped on the notice, was insufficient to establish that the notice was sent to the appellant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … .  Citibank, N.A. v Wood, 2017 NY Slip Op 03727, 2nd Dept 5-10-17

FORECLOSURE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 90 NOTICE REQUIREMENT FOR FORECLOSURE PROCEEDINGS NOT MET, PROOF OF MAILING INSUFFICIENT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, NOTICE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 90 NOTICE REQUIREMENT FOR FORECLOSURE PROCEEDINGS NOT MET, PROOF OF MAILING INSUFFICIENT)

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ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT CHILD NEGLECT PROCEEDING ORDER OF PROTECTION ISSUED BY THE SAME COURT.

The Second Department determined father could not move to modify an order of protection issued by the Integrated Domestic Violence (IDV) court in connection with a criminal conviction. The order of protection could be appealed as part of an appeal of the conviction, but the Criminal Procedure Law does not provide for modification of the order. In addition, an order of protection issued by the same court in related child neglect proceedings could not change the terms of the “criminal” order of protection unless that order indicated is was subject to subsequent orders of protection (which was not the case here):

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“[W]here a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court”… . The criminal court has authority to determine whether its order of protection is “subject to” subsequent orders pertaining to custody and visitation, and can decline to amend an order of protection to so provide … . Here, the order of protection … that was entered in the criminal action did not state that it was “subject to” subsequent orders pertaining to custody and visitation. Matter of Utter v Usher, 2017 NY Slip Op 03760, 2nd Dept 5-10-17

FAMILY LAW (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/CRIMINAL LAW (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/ORDERS OF PROTECTION (INTEGRATED DOMESTIC VIOLENCE COURT, ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/INTEGRATED DOMESTIC VIOLENCE COURT (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)

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NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF.

The Second Department determined the negligent supervision action against the school district, stemming from an assault by a student against the infant plaintiff (another student), properly survived summary judgment. The Second Department noted that the school, as opposed to the school district, is not an entity which can be sued. The decision includes a concise but complete explanation of the relevant law. Here the district was aware the infant plaintiff had been harassed by the student before and the student punched the infant plaintiff while a teacher was present in a classroom. The punch was immediately preceded by a couple of minutes of harassment of the infant plaintiff by the assailant:

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… [T]he School District has not shown, prima facie, that the incident “involved the type of unforeseeable, spontaneous acts of violence for which school districts cannot be held liable” … , or that the teacher had no time to prevent the infant plaintiff’s injuries and, therefore, the alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . Moreover, the School District did not demonstrate, prima facie, that the infant plaintiff voluntarily entered into a fight with the classmate; rather, the infant plaintiff’s testimony demonstrated the existence of triable issues of fact as to whether he acted in self-defense … . Because the School District did not meet its prima facie burden, we do not consider the sufficiency of the plaintiffs’ opposition papers … . Guerriero v Sewanhaka Cent. High Sch. Dist., 2017 NY Slip Op 03736, 2nd Dept 5-10-17

EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)/NEGLIGENCE (SCHOOL DISTRICT, NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)/ASSAULT (STUDENT ON STUDENT, NEGLIGENT SUPERVISION ACTION AGAINST SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT, STUDENT ASSAULTED INFANT PLAINTIFF)

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DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL.

The Second Department determined the Department of Motor Vehicles’ finding that petitioner (driver) refused to submit to the chemical (blood alcohol) test after a vehicle stop must be annulled. Although the driver was warned that a refusal required the revocation of his license, he was not told that waiting for a return call from his attorney had been deemed a refusal by the arresting officer:

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A motorist under arrest based on an alleged violation of Vehicle and Traffic Law § 1192 may not condition his or her consent to a chemical test on first being permitted to consult with counsel … . Nonetheless, the consequences of refusing to accede to a chemical test may be imposed only if the motorist, after being adequately warned of those consequences, has refused to accede to the test (see Vehicle and Traffic Law § 1194[2][b], [f]). The adequacy of the warning is the same for the consequence imposed by Vehicle and Traffic Law § 1194(2)(b) (suspension and ultimate revocation of the motorist’s driver license) and the consequence imposed by Vehicle and Traffic Law § 1194(2)(f) (admissibility of evidence of refusal at a subsequent criminal trial) … . Here, the undisputed evidence at the hearing held pursuant to Vehicle and Traffic Law § 1194(2)(c) failed to establish that the petitioner was warned that his time for deliberation had expired and his further request to consult with counsel, which the police sought to accommodate, would be deemed a refusal to accede to the chemical test … . We emphasize that our determination is not based on any violation of any purported right to counsel … , but on the adequacy of the warnings that the request to consult with counsel would constitute a refusal to accede to the chemical test … . Matter of Lamb v Egan, 2017 NY Slip Op 03751, 2nd Dept 5-10-17

CRIMINAL LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/VEHICLE AND TRAFFIC LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/DRIVING WHILE INTOXICATED (CHEMICAL TEST, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/CHEMICAL TEST (DRIVING WHILE INTOXICATED, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)

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PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 42 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action under 18 USC 1983, against the county, for violation of his right to a speedy trial:

We reject the County’s argument that it cannot be held liable pursuant to 42 USC § 1983 for the alleged misconduct of the office of the District Attorney. Where, as here, a complaint alleges a failure to train and supervise employees regarding legal obligations, “liability for the District Attorney’s actions in his role as a manager of the District Attorney’s office rests with the county” …  and a claim pursuant to 42 USC § 1983 may therefore be maintained against the County for the conduct of the District Attorney’s office insofar as the District Attorney acted as a County policymaker … . Moreover, here, the complaint sufficiently alleges that the District Attorney’s office failed to train and supervise its assistant district attorneys with respect to the constitutional speedy trial rights of the accused persons with whom they interacted, to the extent that they manifested deliberate indifference to those rights … . Victor v County of Suffolk, 2017 NY Slip Op 03796, 2nd Dept 5-10-17

CRIMINAL LAW (PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/CIVIL RIGHTS LAW (18 USC 1983) (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/MUNICIPAL LAW (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/SPEEDY TRIAL (CIVIL RIGHTS VIOLATION, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)

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PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL.

The Second Department, reversing defendant’s conviction, determined prosecutorial misconduct deprived defendant of a fair trial:

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… [T]he prosecutor acted as an unsworn witness when he addressed the impeachment of one of the People’s main witnesses, a sister of the complainant (hereinafter the sister). During cross-examination, the sister was impeached by inconsistent testimony she gave in the grand jury proceeding. During summation, the prosecutor argued to the jury that defense counsel had “selected certain portions out of context in the grand jury minutes,” and that the jury “didn’t get the entire grand jury minutes” … . These comments were particularly prejudicial. The sister’s testimony, and thus her credibility, were crucial to the People’s proof against the defendant, which was less than overwhelming. The prosecutor’s comments suggested, without any evidentiary support, that the jury should disregard the sister’s grand jury testimony, in which she failed to name the defendant as a participant in the subject assault, because there was more to the testimony than they knew.

In addition, in reference to the father of the complainant and the sister, who was present during the subject assault but was not called to testify, resulting in a missing witness charge, the prosecutor improperly suggested, and invited the jury to speculate, that the father would have given testimony supportive of his children had he been called to testify … . People v Ramirez, 2017 NY Slip Op 03780, 2nd Dept 5-10-17

 

CRIMINAL LAW (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)

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JUROR MISCONDUCT REQUIRED A NEW TRIAL, JURORS SHARED INFORMATION FROM A FORMER DA AND A FORMER POLICE OFFICER DURING DELIBERATIONS.

The Second Department, reversing defendant’s conviction, determined juror misconduct required a new trial. During deliberations two jurors shared information concerning trial evidence which was provided in one case by a former assistant district attorney and in the other by a retired police officer:

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… [O]ne of the jurors improperly shared the views of her husband, who was a retired assistant district attorney, by telling the other jurors that he told her that everything the prosecutors said was true, that law enforcement officers would not lie, that the accomplice could never have come up with such an extravagant story in such a limited amount of time, and that crime scene videos didn’t show everything. Moreover, the evidence established that the juror’s comments regarding her husband’s statements influenced one juror who testified at the hearing. Additionally, another juror testified that during deliberations she sent a text message to her uncle, a retired police officer, and asked him if a nine millimeter bullet could fit into a .40 caliber gun. Her uncle told her “no,” and the following day she shared that information with the jury. People v Plowden, 2017 NY Slip Op 03779, 2nd Dept 5-10-17

CRIMINAL LAW (JUROR MISCONDUCT REQUIRED A NEW TRIAL, JURORS SHARED INFORMATION FROM A FORMER DA AND A FORMER POLICE OFFICER DURING DELIBERATIONS)/JURORS (CRIMINAL LAW, JUROR MISCONDUCT REQUIRED A NEW TRIAL, JURORS SHARED INFORMATION FROM A FORMER DA AND A FORMER POLICE OFFICER DURING DELIBERATIONS)

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MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY.

The Second Department determined plaintiff’s motion to set aside the verdict in this personal injury case was properly granted. The jury found defendant negligent but went on to find the negligence was not the proximate cause of the injury:

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… [T]he plaintiff … was injured when an ammunition reloading device, owned by the defendant, exploded as the plaintiff attempted to remove what was purportedly a “dead” cartridge from the device. The defendant had inadvertently jammed a live round in the device two months earlier and had attempted to remove the combustible components before bringing it to the plaintiff and seeking his assistance in removing the jammed cartridge. * * *

… [T]here existed no valid line of reasoning and permissible inferences from which the jury could rationally have found that the defendant’s negligent conduct was not a proximate cause of the plaintiff’s injuries. Piro v Demeglio, 2017 NY Slip Op 03785, 2nd Dept 5-10-17

 

CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)/NEGLIGENCE (CIVIL PROCEDURE, MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)/VERDICT, MOTION TO SET ASIDE (CIVIL PROCEDURE, MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)

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