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NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED.

The Second Department determined plaintiff Audi dealership’s suit claiming that the award of a new Audi dealership constituted a modification of the franchise in violation of the Dealer Act (Vehicle and Traffic Law 463 (2)) was properly dismissed. Plaintiff acknowledged that the new dealership was outside plaintiff’s market area:

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Here, the plaintiff does not dispute that the location of the proposed new Westbury dealership is outside the plaintiff’s “relevant market area,” and thus, the plaintiff cannot challenge the addition of that dealership under Vehicle and Traffic Law § 463(2)(cc). As a result, the plaintiff seeks to challenge the proposed addition of the new dealership under Vehicle and Traffic Law § 463(2)(ff), which provides that a franchisor must give notice to the dealer of any “modification” to the dealer’s franchise … . However, permitting the plaintiff to challenge the addition of the Westbury dealership under Vehicle and Traffic Law § 463(2)(ff) would essentially render the standing requirement and specific procedures set forth in Vehicle and Traffic Law § 463(2)(cc) superfluous … . As such, the Supreme Court properly determined that Vehicle and Traffic Law § 463(2)(cc) is the sole mechanism under the Dealer Act by which the plaintiff can challenge Audi’s addition of the proposed new Westbury dealership, and properly directed the dismissal of the first cause of action.  JJM Sunrise Automotive, LLC v Volkswagen Group of Am., Inc., 2017 NY Slip Op 03160, 2nd Dept 4-26-17

VEHICLE AND TRAFFIC LAW (DEALER ACT) (NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED)/DEALER ACT (VEHICLE AND TRAFFIC LAW, NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED)/AUTO DEALERSHIPS (VEHICLE AND TRAFFIC LAW, NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED)

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ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED.

In a dispute between real estate brokers over plaintiff’s entitlement to a percentage of a commission, the Second Department determined defendants’ counterclaims for abuse of process, prima facie tort, tortious interference with prospective business relations, and attorney’s fees were properly dismissed. The (unsuccessful) claim for attorney’s fees was based upon language in a real estate policy and procedure manual the language of which was deemed too vague to supplant the general rule that parties are responsible for their own attorney’s fees. With regard to the abuse of process and attorney’s fees claims, the court explained:

“The three essential elements of the tort of abuse of process are (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective'” … . “[T]he gist of the tort is the improper use of process after it is issued’ by an unlawful interference with one’s person or property'”… . Here, the gravamen of the first counterclaim was that the plaintiff initiated this lawsuit with the intent to harm the defendants, knowing that the brokerage community would find out about the lawsuit, which would damage the defendants’ ability to do business in that community. However, “the institution of a civil action by summons and complaint is not legally considered process capable of being abused” … . Moreover, there was no allegation that the plaintiff improperly used process after it was issued. Furthermore, “a malicious motive alone does not give rise to a cause of action to recover damages for abuse of process” … . * * *

In the fourth counterclaim the defendants sought to recover attorneys’ fees incurred in defending this action pursuant to a provision in their “Policy & Procedure Manual,” which states, inter alia, that “[i]f a dispute arises due to a commission and a legal action is commenced as a result thereof, the costs of the legal action will be deducted from the fee collected,” and “[i]f [a] suit is a result of an agent’s action, he/she will be responsible for payment of damages incurred as a result.” Since “a promise by one party to a contract to indemnify the other for attorney’s fees incurred in litigation between them is contrary to the well-understood rule that parties are responsible for their own attorney’s fees, the court should not infer a party’s intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise” … . Here, the provision relied upon by the defendants is vague, and a promise by the plaintiff to indemnify the defendants for attorneys’ fees incurred in litigation between them cannot be clearly implied from the language and purpose of the entire manual. Goldman v Citicore I, LLC, 2017 NY Slip Op 03156, 2nd Dept 4-26-17

 

REAL ESTATE (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/INTENTIONAL TORTS (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/ABUSE OF PROCESS (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/COMMISSIONS (REAL ESTATE, ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)

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HOSPITAL NOT LIABLE FOR ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED.

The Second Department determined defendant hospital (Beth Israel) could not be liable for the acts of a surgeon (Krikhely) who: (1) was not an employee; (2) was not subject to the emergency room exception; (3) did not order the hospital staff to perform an act which was contraindicated; and (4) was not acting under the ostensible or apparent authority of the hospital:

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… [T]he Beth Israel defendants established, prima facie, that Krikhely was a private attending physician who was not an employee of the hospital and who was referred to [plaintiff] by his private physician … . Furthermore, the Beth Israel defendants made a prima facie showing that the emergency room exception was inapplicable by demonstrating that Spiegel was referred to Krikhely’s care by his private physician … .. In opposition, the plaintiffs failed to rebut the prima facie showing that Krikhely was not an employee of the hospital and that the emergency room exception did not apply … . Moreover, the plaintiffs failed to raise a triable issue of fact as to whether the hospital’s staff committed independent acts of malpractice and as to whether any order given by Krikhely was so contraindicated that it should not have been followed by the hospital’s staff … .  Furthermore, the plaintiffs failed to raise a triable issue of fact as to whether the hospital may be held liable under a theory of ostensible or apparent agency … . Spiegel v Beth Israel Med. Center-Kings Highway Div., 2017 NY Slip Op 03211, 2nd Dept 4-26-17

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NEGLIGENCE (HOSPITAL NOT LIABLE OF ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED)/MEDICAL MALPRACTICE (HOSPITAL NOT LIABLE OF ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED)/HOSPITALS (MEDICAL MALPRACTICE, HOSPITAL NOT LIABLE OF ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED)

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DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT.

The Second Department determined the defendant concert/dance hall’s (Knitting Factory’s) motion for summary judgment was properly denied. Plaintiff alleged he was pushed into a mosh pit where someone hit him in the eye. The defendant argued plaintiff assumed the risk of the injury and no level of supervision could have prevented the injury:

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A property owner must act in a reasonable manner to prevent harm to those on its premises, which includes 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 … . The doctrine of primary assumption of risk “applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” … . A person who chooses to engage in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation”… . The duty owed in these situations is “a duty to exercise care to make the conditions as safe as they appear to be” … . The doctrine has generally been restricted “to particular athletic and recreative activities in recognition that such pursuits have enormous social value’ even while they may involve significantly heightened risks'” … , and are, therefore, “worthy of insulation from a breach of duty claim” … .

Here, even assuming, without deciding, that attending a metal music concert where “moshing” takes place is a qualified activity to which the doctrine may properly be applied … , under the facts presented here, the Knitting Factory failed to eliminate triable issues of fact as to whether it met its duty to exercise care to make the conditions at the subject venue as safe as they appeared to be … , and did not unreasonably increase the usual risks inherent in the activity of concert going… . The Knitting Factory also failed to eliminate triable issues of fact as to whether the plaintiff assumed the risk of injury … , whether the plaintiff’s alleged injuries were foreseeable, and whether it provided adequate security measures and, if not, whether its failure was a proximate cause of the plaintiff’s alleged injuries … . Nevo v Knitting Factory Brooklyn, Inc., 2017 NY Slip Op 03186, 2nd Dept 4-26-17

 

NEGLIGENCE (DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT)/ASSUMPTION OF RISK (DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT)/MOSH PITS (CONCERT HALLS, NEGLIGENCE, DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT)

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DEFENDANTS DID NOT DEMONSTRATE (1) THE STAIRS DOWN WHICH PLAINTIFF FELL WERE NOT REQUIRED TO HAVE A HANDRAIL (2) THE STAIRS WERE ADEQUATELY ILLUMINATED (3) OUT OF POSSESSION LANDLORD STATUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants’ summary judgment motion should not have been granted. Plaintiff fell down stairs on defendants’ property while holding the infant plaintiff. Plaintiffs alleged the stairs should have had a hand rail (an alleged code violation) and were poorly illuminated. The defendants’ papers did not negate those theories and did not demonstrate out-of-possession-landlord status:

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Here, viewing the evidence in the light most favorable to the plaintiffs as the nonmoving parties, the defendants failed to establish, prima facie, that the subject staircase did not have to be equipped with a handrail pursuant to the code provisions alleged in the plaintiffs’ pleadings and that the absence of the handrail and the alleged inadequate lighting condition did not proximately cause the plaintiffs to fall … . The defendants also failed to establish, prima facie, that they were out-of-possession landlords who had no notice of the alleged hazardous conditions of the subject staircase … .

Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiffs’ opposition papers … . Lopez-Serrano v Ochoa, 2017 NY Slip Op 03167, 2nd Dept 4-26-17

 

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE (1) THE STAIRS DOWN WHICH PLAINTIFFS FELL WERE NOT REQUIRED TO HAVE A HANDRAIL (2) THE STAIRS WERE ADEQUATELY ILLUMINATED (3) OUT OF POSSESSION LANDLORD STATUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SUMMARY JUDGMENT (DEFENDANTS DID NOT NEGATE PLAINTIFFS’ THEORIES, DEFENDANTS DID NOT DEMONSTRATE (1) THE STAIRS DOWN WHICH PLAINTIFFS FELL WERE NOT REQUIRED TO HAVE A HANDRAIL (2) THE STAIRS WERE ADEQUATELY ILLUMINATED (3) OUT OF POSSESSION LANDLORD STATUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFENDANTS DID NOT DEMONSTRATE (1) THE STAIRS DOWN WHICH PLAINTIFFS FELL WERE NOT REQUIRED TO HAVE A HANDRAIL (2) THE STAIRS WERE ADEQUATELY ILLUMINATED (3) OUT OF POSSESSION LANDLORD STATUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/STAIRS (DEFENDANTS DID NOT DEMONSTRATE (1) THE STAIRS DOWN WHICH PLAINTIFFS FELL WERE NOT REQUIRED TO HAVE A HANDRAIL (2) THE STAIRS WERE ADEQUATELY ILLUMINATED (3) OUT OF POSSESSION LANDLORD STATUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED) 

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NOTICE OF CLAIM WHICH WAS MISDIRECTED BECAUSE OF A MINOR MISNOMER ON THE MAILED ENVELOPE DEEMED TIMELY SERVED.

The Second Department, over a dissent, reversing Supreme Court, determined that a notice of claim which named the correct party (New York City Housing Authority [NYCHA]) and address but mistakenly indicated the “Comptroller” of the NYCHA on the mailed envelope, was properly served. The envelope was misdirected to the Comptroller of the City of New York, despite the fact that the comptroller is at an entirely different address than that on the envelope:

As pertinent to this appeal, General Municipal Law § 50-e(3)(a) provides that the notice of claim should be mailed “to the person designated by law as one to whom a summons in an action . . . may be delivered.” Although the statute requires that the notice be mailed to the designated “person,” this generally refers to the public authority or government entity itself rather than a particular person employed thereby … . Here, there is no real dispute that simply writing “NYCHA” on the envelope would have satisfied the requirements of the statute.

Further, while NYCHA contends that there is no such person or entity as the “Comptroller of the NYCHA,” a “comptroller” is simply an officer of a municipal corporation, like NYCHA, “who is charged with duties [usually] relating to fiscal affairs, including auditing and examining accounts and reporting the financial status periodically” (Black’s Law Dictionary 347 [10th ed 2014]). In any event, the minor misnomer on the envelope need not be fatal to the action, especially where, as here, the plaintiff’s attorney properly mailed the same notice of claim form to both the Comptroller and NYCHA in order to assert a claim against both the City of New York and NYCHA, and the notice of claim itself named NYCHA.

Under these circumstances, we find that the envelope was properly addressed within the meaning of General Municipal Law § 50-e(3)(b) and the plaintiff properly served the notice of claim upon NYCHA within the requisite 90-day statutory period … . Carroll v City of New York. 2017 NY Slip Op 03148, 2nd Dept 4-26-2017

MUNICIPAL LAW (NOTICE OF CLAIM WHICH WAS MISDIRECTED BECAUSE OF A MINOR MISNOMER ON THE MAILED ENVELOPE DEEMED TIMELY SERVED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM WHICH WAS MISDIRECTED BECAUSE OF A MINOR MISNOMER ON THE MAILED ENVELOPE DEEMED TIMELY SERVED)/NOTICE OF CLAIM (MUNICIPAL LAW, NOTICE OF CLAIM WHICH WAS MISDIRECTED BECAUSE OF A MINOR MISNOMER ON THE MAILED ENVELOPE DEEMED TIMELY SERVED)

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ELEVATOR REPAIR COVERED UNDER LABOR LAW 240(1), STATIONARY LADDER WAS A SAFETY DEVICE, QUESTION OF FACT WHETHER THE LADDER AFFORDED ADEQUATE PROTECTION.

The Second Department determined neither defendant nor plaintiff’s decedent was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff’s decedent had to climb up a stationary ladder to access an elevator motor for repair. He slipped off the ladder while descending. The ladder was deemed a safety device covered by Labor Law 240(1) but there was question of fact whether the ladder offered adequate protection:

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The defendant failed to establish, prima facie, that the plaintiff’s decedent was not engaged in a covered activity at the time of the injury. To the contrary, the record evidence supports the plaintiff’s contention that the decedent was repairing a malfunctioning elevator car when the accident occurred … .

Moreover, under the circumstances presented, the permanently affixed ladder, which provided the only means of access to the elevated motor room, functioned as a “safety device” within the meaning of the statute … . ,,,

Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability with respect to the Labor Law § 240(1) cause of action, as the evidence submitted on the plaintiff’s motion raised triable issues of fact as to whether the ladder afforded the decedent adequate protection for entering and exiting the motor room … . Esquivel v 2707 Creston Realty, LLC, 2017 NY Slip Op 03155, 2nd Dept 4-26-17

 

LABOR LAW-CONSTRUCTION LAW (ELEVATOR REPAIR COVERED UNDER LABOR LAW 240(1), STATIONARY LADDER WAS A SAFETY DEVICE, QUESTION OF FACT WHETHER THE LADDER AFFORDED ADEQUATE PROTECTION)/ELEVATORS (LABOR LAW-CONSTRUCTION LAW, ELEVATOR REPAIR COVERED UNDER LABOR LAW 240(1), STATIONARY LADDER WAS A SAFETY DEVICE, QUESTION OF FACT WHETHER THE LADDER AFFORDED ADEQUATE PROTECTION)

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DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED.

The Second Department determined the finding petitioner had used marijuana was not supported by the evidence. The hearing officer stipulated to the petitioner’s claim that the medication he was taking produced false positive results for marijuana. The corrections officer’s testimony that he smelled marijuana near where the petitioner was standing was not enough. Petitioner was standing outside with others at the time:

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Since the hearing officer stipulated that the petitioner’s medication produces false positives for cannabinoids in urinalysis tests, and since no evidence was submitted to contradict the petitioner’s evidence, the positive urinalysis tests results were of little probative value in establishing that the petitioner used cannabinoids. While the correction officer’s observations were sufficient to raise suspicion that the petitioner had violated the prison disciplinary rule, they were not adequate to reasonably support the conclusion that the petitioner had, in fact, violated the rule, especially since the correction officer’s detection of the marijuana odor was made outdoors where there were other inmates in the immediate vicinity of the petitioner. Accordingly, we find that the hearing officer’s determination was not supported by substantial evidence. Matter of Jackson v Annucci, 2017 NY Slip Op 03178, 2nd Dept 4-26-17

DISCIPLINARY HEARINGS (INMATES) (DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED)/MARIJUANA (DISCIPLINARY HEARINGS, INMATES, DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED)

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HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED.

The Second Department, in affirming summary judgment for defendant in this dog bite case, noted that hearsay, standing alone, is insufficient to defeat a summary judgment motion. Defendant (Nicole) demonstrated she had no knowledge the dog had vicious propensities. In response, plaintiff presented only hearsay:

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Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating, through Nicole’s deposition testimony, that she was not aware, nor should she have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior … . Nicole testified that she had purchased the dog when it was two months old, the dog had undergone obedience training, and the dog had never attacked or bitten anyone before the incident at issue.

The plaintiff failed to raise a triable issue of fact in opposition. The only evidence offered by the plaintiff to demonstrate that, prior to this incident, the dog had exhibited fierce or hostile tendencies was hearsay, which is insufficient, on its own, to bar summary judgment … . Ciliotta v Ranieri, 2017 NY Slip Op 03150, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/ANIMAL LAW (DOG BITE, SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/DOG BITE  (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/HEARSAY (SUMMARY JUDGMENT,  HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/SUMMARY JUDGMENT (HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE AND LAWFUL TEMPORARY POSSESSION OF A WEAPON.

The Second Department, reversing defendant’s assault and weapons convictions, determined the defendant’s testimony alleged facts which required that the jury be instructed on the justification defense and the lawful temporary possession of a weapon. Defendant testified he was attacked by the complainant from behind and he grabbed an object from defendant and started swinging at the complainant to protect himself as they rolled on the ground. The fact that defendant did not testify he stabbed the complainant did not preclude the applicability of the justification defense:

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… [V]iewing the evidence in the light most favorable to the defendant, there was a reasonable view of the evidence that the complainant was the aggressor, that the defendant could not safely retreat, that the defendant’s actions during the fight caused the complainant’s injuries, and that the defendant’s actions were justified. The fact that the defendant did not testify that he stabbed the complainant did not preclude a charge as to a justification defense, since the evidence, viewed as a whole, supported such a charge … . * * *

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… [W]e agree with the defendant that he was entitled to a jury charge on the defense of temporary and lawful possession of a weapon with respect to that count of the indictment … . Although this contention was not preserved for appellate review, we review it in the exercise of our interest of justice jurisdiction … .

In some circumstances, a person may possess an unlicensed or proscribed weapon and still not be guilty of a crime because of the innocent nature of the possession … . To warrant a jury instruction on the defense of temporary and lawful possession, “there must be proof in the record showing a legal excuse for [the defendant’s possession of] the weapon . . . as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner” … . A person may be found to have had temporary and lawful possession of a weapon if he or she took the weapon from an assailant in the course of a fight … . Viewing the evidence in the light most favorable to the defendant, there was a reasonable view of the evidence supporting this defense. The defendant testified that he only possessed the knife, if at all, when he attempted to disarm the complainant during the fight. Further, although the defendant’s use of the knife thereafter resulted in the complainant being stabbed, should a jury believe that the defendant’s use of the knife was justified, such use would have been lawful … , and not “utterly at odds with [the defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor” … . People v Sackey-El, 2017 NY Slip Op 03198, 2nd Dept 4-26-17

 

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE AND LAWFUL TEMPORARY POSSESSION OF A WEAPON)/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE AND LAWFUL TEMPORARY POSSESSION OF A WEAPON)/WEAPON, LAWFUL TEMPORARY POSSESSION OF (JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE AND LAWFUL TEMPORARY POSSESSION OF A WEAPON)

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