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EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED.

The Third Department, in a full-fledged opinion by Justice Clark, over a dissent, reversing Supreme Court, determined plaintiff had proved at trial that he suffered a serious injury within the meaning of Insurance Law 5102 (d) and was therefore entitled to the jury’s damages award. Plaintiff was unloading his car when defendant’s car struck plaintiff’s, which then struck plaintiff. Plaintiff came out of his shoes and was thrown to the sidewalk. He was knocked unconscious, suffered a gash on the back of his head, and suffered a concussion. Plaintiff presented evidence at trial of traumatic brain injury with cognitive loss. The trial judge had granted defendant’s motion to set aside the verdict and dismissed the complaint, finding the evidence of serious injury insufficient:

Notwithstanding the negative scans, the absence of neurological testing and the subjectivity of plaintiff’s complaints, many of plaintiff’s reported symptoms, including his impaired concentration and balance and difficulty with problem solving and word retrieval, were objectively and personally observed by plaintiff’s primary care physician, who had the necessary historical knowledge and ability to compare his clinical, postaccident observations of plaintiff’s condition to his prior observations of plaintiff’s preaccident condition … . Contrary to the dissent’s assertion, the primary care physician’s treatment and assessment of plaintiff’s injuries were also informed by his review of the medical records of the rehabilitation psychologist and plaintiff’s physical and occupational therapists, which documented their objective observations of plaintiff’s physical and cognitive deficiencies and limited improvements over a period of nearly two years. Moreover, the bases for the primary care physician’s qualitative assessment of the seriousness of plaintiff’s injury, including his observations of plaintiff’s preaccident and postaccident conditions, as well as the accuracy of his memory, could “be tested during cross-examination, challenged by another expert and weighed by the trier of fact” … .

In our view, the comparative determination of plaintiff’s primary care physician, taken together with plaintiff’s defined head wound and subjective complaints immediately after the accident and continuing four years later, provided the jury with a valid line of reasoning and permissible inferences that could lead it to the rational conclusion that plaintiff suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system … . Rodman v Deangeles, 2017 NY Slip Op 01260, 3rd Dept 2-16-17

 

INSURANCE LAW (EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)/NO-FAULT (EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)/SERIOUS INJURY (NO-FAULT INSURANCE, EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING PLAINTIFF’S HEAD INJURY WAS A SERIOUS INJURY WITHIN THE MEANING OF INSURANCE LAW 5102, SUPREME COURT REVERSED)

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THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY.

The First Department, in a full-fledged opinion by Justice Acosta, determined the evidence was sufficient to support defendant’s robbery second and grand larceny fourth convictions. Defendant told the victim (Diaz) she would have him beaten up if he didn’t give her $20. The court held the victim had been threatened with immediate use of force within the meaning of the statute:

With respect to defendant’s robbery conviction, the evidence demonstrates that defendant threatened Diaz with the immediate use of physical force. Pursuant to Penal Law § 160.00(1), a person is guilty of robbery “when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking.” However, “[t]he statute does not require the use of any words whatsoever, but merely that there be a threat, whatever its nature, of the immediate use of physical force” … . There is also no requirement that a weapon be displayed or that the victim be physically injured to demonstrate that there was a threat of immediate physical force … . Further, the threat of the immediate use of force may be demonstrated by “a chain of actions on the part of [the] defendant” … .

Diaz testified that he gave defendant the $20 because he was “scared” after defendant … prevented him from leaving and defendant explicitly threatened him that if he did not comply, her boyfriend would beat him up. Defendant then went to speak to a man who gestured that he was going to call someone … . People v Villanueva, 2017 NY Slip Op 01299, 1st Dept 2-16-17

 

CRIMINAL LAW (THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/EVIDENCE (CRIMINAL LAW, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/ROBBERY (THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/THREAT (ROBBERY, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/IMMEDIATE USE OF PHYSICAL FORCE (ROBBERY, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)

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VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES.

The First Department, over an extensive dissent, determined the identification testimony by the assault victim was credible, despite a period of unconsciousness, dizziness and inconsistencies:

[The] grounds for undercutting one-witness identifications [in other cases] are not comparable to the dizziness and loss of consciousness caused by the subject assault, and the limited nature of the complainant’s two opportunities to look directly at his attacker. Our system of criminal justice relies on victims of violence identifying their attackers when they are able to do so. It would be ironic indeed if the severity of an attack and the resulting injuries were to prompt courts to treat the subsequent identification as unworthy of belief, despite the complainant’s certainty. Of course, the defense is entitled to question an identification based on the complainant’s compromised condition caused by the attack. However, that argument did not sway the jury here, and upon our review of the evidence at trial, it does not appear that the complainant was unable to make an identification.

Any inconsistencies in the complainant’s testimony were minor, possibly due to limitations in his English skills, and did not undermine his overall credibility. People v Kahson B., 2017 NY Slip Op 01265, 1st Dept 2-16-17

 

CRIMINAL LAW (VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)/EVIDENCE (CRIMINAL LAW, VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)/IDENTIFICATION (CRIMINAL LAW, EVIDENCE, VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)

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STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE.

The First Department determined the striking of defendants’ answers was the proper remedy for spoliation of evidence. Plaintiff was injured on a staircase. The staircase was removed and destroyed days before a scheduled inspection:

Plaintiffs’ pre-action service of preservation letters on the daycare, the initiation of this action, and the issuance of the preliminary conference order, placed defendants on notice of the need to preserve the staircase. The staircase was removed and destroyed in November 2013, days before the scheduled court-ordered inspection. As found by the motion court, “[I]t is clear that the individual defendants destroyed the stairs in question in violation of the order of th[e] court, knowing that plaintiff’s inspection was to take place a few days later.”

The intentional destruction of the staircase, key physical evidence, severely prejudices plaintiffs’ ability to prove their case, and warrants the extreme sanction of striking defendants’ answers … . The record contains no evidence that photographs depicting the staircase exist. Nor is this a case where plaintiffs sat on their rights … . Rookwood v Busy B’s Child Care Daycare Inc., 2017 NY Slip Op 01281, 1st Dept 2-16-17

 

CIVIL PROCEDURE (SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/EVIDENCE (SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/SPOLIATION (STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/NEGLIGENCE (EVIDENCE, SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)

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TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE.

The Court of Appeals determined the testimony of an officer (Mercado) who was present throughout the DWI breathalyzer test process administered by another officer (Harriman) did not violate the Confrontation Clause. Harriman had retired and moved out of state by the time of defendant’s trial:

The only step in the testing process that the Appellate Term found Mercado did not personally perform or observe, and the sole stated basis for that court finding a Confrontation Clause violation, was verification of the simulator solution temperature as displayed on the machine. Inasmuch as the written 13-step checklist completed by Harriman was not admitted into evidence, no testimonial statement by a nontestifying witness concerning the temperature — or any aspect of the testing procedure — was used against defendant. Thus, any argument as to Mercado’s failure to observe the temperature reading would merely relate to whether there was a proper foundation for his testimony, which would not implicate a Confrontation Clause violation … . However, to the extent that the Appellate Term based its decision on the failure of an “essential” step in the testing procedure, the trial record contradicts that court’s conclusion that there was an absence of evidence that the machine will shut itself down and fail to perform the test if the temperature is outside the proper range … . * * *

Mercado observed Harriman perform all of the steps on the checklist and saw the breathalyzer machine print out the results. Based upon his personal observations, Mercado — as a trained and certified operator who was present for the entire testing protocol — was a suitable witness to testify about the testing procedure and results in defendant’s test. Inasmuch as Mercado testified as to his own observations, not as a surrogate for Harriman, there was no Confrontation Clause violation. Any alleged irregularities concerning the testing procedure would relate to the weight of Mercado’s testimony, not its admissibility … . People v Hao Lin, 2017 NY Slip Op 01253, CtApp 2-16-17

 

CRIMINAL LAW (TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/EVIDENCE (CRIMINAL LAW, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/CONFRONTATION CLAUSE (DWI, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/DRIVING WHILE INTOXICATED (BREATHALYZER, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/BREATHALYZER (DWI, (TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTION REVERSED.

The Court of Appeals, in a memorandum decision that does not explain the relevant facts, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. People v Maldonado, 2017 NY Slip Op 01254, CtApp 2-16-17

 

CRIMINAL LAW (DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)/INEFFECTIVE ASSISTANCE (ATTORNEYS, CRIMINAL LAW, (DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)

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TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT.

The Second Department determined the tree root over which plaintiff tripped and fell was open obvious and not actionable:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the tree root was an open and obvious condition and inherent or incidental to the nature of the property, and was known to the plaintiff … . Dottavio v Aspen Knolls Estates Home Owners Assn., 2017 NY Slip Op 01182, 2nd Dept 2-15-17

NEGLIGENCE (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/SLIP AND FALL (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/OPEN AND OBVIOUS (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)/TREE ROOT (TREE ROOT OVER WHICH PLAINTIFF TRIPPED WAS A NON-ACTIONABLE OPEN AND OBVIOUS DEFECT)

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CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined the city’s motion for summary judgment in this bicycle accident case was properly denied. Although the city demonstrated it did not receive written notice of the alleged defective condition (a depression in the road), the city did not demonstrate it did not create the defective condition when street work was done:

Where, as here, the plaintiff has alleged that the affirmative negligence exception applies, the City was required to show, prima facie, that the exception does not apply … . Although the City established that it did not receive prior written notice of the alleged defect, it failed to establish, prima facie, that it did not create the alleged defect when its Sewer Maintenance Department opened up the street in the area of the plaintiff’s fall prior to the accident … . Since the City did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. Lewak v Town of Hempstead, 2017 NY Slip Op 01189, 2nd Dept 2-15-17

NEGLIGENCE (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NEGLIGENCE, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/BICYCLE ACCIDENT (MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, CITY DID NOT DEMONSTRATE IT DID NOT CREATE THE ROADWAY DEPRESSION WHICH CAUSED PLAINTIFF’S BICYCLE ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendants’ summary judgment motion in this ice/snow sidewalk slip and fall action was properly denied. Although the defendants demonstrated they were entitled to NYC’s exemption from liability for owners of one, two and three family residences, they did not demonstrate they did not create the dangerous condition by their snow removal efforts:

Here, the defendants established, prima facie, that as owners of a two-family residential property which was owner occupied, they were exempt from liability pursuant to section 7-210(b) of the Administrative Code … . The defendants failed, however, to establish, prima facie, that they did not engage in snow and ice removal work prior to the accident or that their snow and ice removal work did not create or exacerbate the hazardous condition which allegedly caused the plaintiff to fall … . Ming Hsia v Valle, 2017 NY Slip Op 01193, 2nd Dept 2-15-17

NEGLIGENCE (ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/MUNICIPAL LAW (NYC) (SIDEWALKS, SNOW-ICE, ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SIDEWALKS (NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (SIDEWALKS, NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)/SNOW-ICE (SIDEWALKS, NEGLIGENCE, MUNICIPAL LAW (NYC), ALTHOUGH DEFENDANTS WERE ENTITLED TO EXEMPTION FROM SNOW-ICE SIDEWALK-FALL LIABILITY UNDER THE NYC ADMINISTRATIVE LAW, THEY DID NOT DEMONSTRATE THE HAZARD WAS NOT CREATED BY THEIR SNOW REMOVAL EFFORTS, SUMMARY JUDGMENT PROPERLY DENIED)

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BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK.

The Second Department, reversing Supreme Court, determine a basement business office did not deprive defendants of the residential exemption (for one, two and three family residences) from liability for a defective sidewalk:

In 2003, the New York City Council enacted section 7-210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners … . This liability shifting provision does not, however, apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” … . “The purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” … .

Here, the defendants established, prima facie, that they were exempt from liability pursuant to the subject code exception. Contrary to the plaintiff’s contention, the defendants’ partial use of the basement as an office space was merely incidental to their residential use of the property … . [Defendant] Alexander Dembitzer was the director of a summer camp located in upstate New York, and during the off-season, he used the basement to conduct the camp’s business. The defendants did not claim the home office as a tax deduction, their home address was only used to receive the camp’s mail during the off-season, and they did not use the office space with any regularity. Koronkevich v Dembitzer, 2017 NY Slip Op 01187, 2nd Dept 2-15-17

 

NEGLIGENCE (BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/NEGLIGENCE (BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/MUNICIPAL LAW (NYC) (SIDEWALKS, BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/SIDEWALKS (MUNICIPAL LAW (NYC), BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)/SLIP AND FALL (SIDEWALKS, MUNICIPAL LAW (NYC), BASEMENT OFFICE DID NOT DEPRIVE DEFENDANT HOMEOWNERS OF RESIDENTIAL EXEMPTION FROM LIABILITY FOR A DEFECTIVE SIDEWALK)

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