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PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL.

The First Department, reversing Supreme Court’s dismissal of the complaint during trial, determined the plaintiff’s failure to turn over a videotape of the event during which plaintiff allegedly tripped on a cord and fell did not justify dismissing the complaint. On the third day of the trial plaintiff testified she had found a videotape of the event which had been misplaced. The videotape did not show the trip and fall, but allegedly did show the cord which caused the fall:

Under the particular circumstances of this case, the court abused its discretion in dismissing the complaint due to plaintiff’s belated disclosure of a video. Although CPLR 3101(i) requires disclosure of “any films, photographs, video tapes or audio tapes” of a party upon demand … , there was insufficient evidence of willful or contumacious conduct on plaintiff’s part, or prejudice to [defendant], to warrant the dismissal of her complaint in the midst of the jury trial ,,,, even if the dismissal was without prejudice.

There was no court order directing plaintiff to produce the video, and [defendant’s] discovery demands only requested that she produce photographs. Furthermore, plaintiff, who claimed to have misplaced the video, did not seek to introduce the edited video, which did not show her fall, into evidence at trial, and was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of [defendant’s] principals standing in the vicinity. Fox v Grand Slam Banquet Hall, 2016 NY Slip Op 05897, 1st Dept 8-25-16

NEGLIGENCE (PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)/EVIDENCE (CIVIL, PLAINTIFF’S FAILURE TO TURN OVER A VIDEOTAPE OF THE EVENT AT WHICH PLAINTIFF WAS INJURED DID NOT WARRANT THE DISMISSAL OF THE COMPLAINT DURING THE JURY TRIAL)

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ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW.

The First Department affirmed summary judgment to the defendants in this slip and fall case. Plaintiff fell off an elevated platform. However the platform and steps were well-marked and well-lit and plaintiff testified she fell because she was not looking down. The defendants therefore demonstrated the platform did not constitute a dangerous condition as a matter of law:

… [P]laintiff alleges that she was injured when she fell off an elevated display platform in defendants’ store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions as a matter of law through photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris … .

Furthermore, plaintiff testified that she turned and stepped without looking down because she was seeking a sales associate and that the steps played no part in her fall … . Pinkham v West Elm, 2016 NY Slip Op 05899, 1st Dept 8-25-16

 

NEGLIGENCE (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)/DANGEROUS CONDITION (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)/SLIP AND FALL (ELEVATED PLATFORM NOT A DANGEROUS CONDITION AS A MATTER OF LAW)

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WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED.

The First Department determined the Port Authority of NY & NJ did not waive sovereign immunity, despite several contract provisions requiring several steps to resolve disputes prior to resorting to suit. Because the notice of claim and the subsequent filing of a complaint were not timely pursuant to Unconsolidated Law 7107, the complaint was properly dismissed. The court noted that, although the waiver of sovereignty argument was not raised below, the appellate court could consider the argument (which was rejected). With respect to the powers of the appellate court in this context, the court explained:

… [W]here a party does not allege new facts, but merely raises a legal argument that appeared upon the face of the record, we are free to consider the argument “[s]o long as the issue is determinative and the record on appeal is sufficient to permit our review” … . The waiver argument presents this very circumstance, and therefore, we consider [the] waiver argument on this appeal. W&W Steel, LLC v Port Auth. of N.Y. & N.J., 2016 NY Slip Op 05900, 1st Dept 8-25-16

(MUNICIPAL LAW (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)APPEALS (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)/IMMUNITY (MUNICIPAL LAW, WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)

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TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined defendant was deprived of his right to counsel when, after his attorney had been relieved, the judge pressured defendant into providing a DNA sample. The People’s request for a DNA sample came long after the discovery deadline had passed. The defendant ultimately pled guilty to manslaughter and burglary. The First Department vacated the guilty pleas and dismissed the indictment:

The court rejected defendant’s repeated pleas for a lawyer, pressured him into submitting to the DNA test, and incorrectly advised him that he had no argument against the prosecutor’s untimely discovery. The denial of defendant’s repeated entreaties to consult with a lawyer during this critical stage of the proceedings violated his Sixth Amendment rights. The deprivation of his Sixth Amendment rights is of constitutional dimension and is not subject to a harmless error analysis … . The appropriate remedy under the circumstances is to vacate both pleas, and to dismiss the indictment … . People v Smith, 2016 NY Slip Op 05902, 1st Dept 8-25-16

CRIMINAL LAW (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/RIGHT TO COUNSEL (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/DNA SAMPLE (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)

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QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR.

The Second Department determined there was a question of fact whether the employer, Vertical, could be held vicariously liable for the actions of an independent contractor, On Guard. On Guard provided security for a parking lot owned by Vertical. Plaintiff was injured when struck by a remote-controlled toy car which was apparently being operated in the parking lot with a security guard’s knowledge:

“Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts'” … . “One of the exceptions to this general rule is the nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party ” is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated'” … .

Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether On Guard was negligent in performing its security duties, and whether the moving defendants were vicariously liable for On Guard’s negligence based on their nondelegable duty to keep the premises safe… . Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854, 2nd Dept 8-24-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/EMPLOYMENT LAW (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/INDEPENDENT CONTRACTORS (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)

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NON-PROFIT RETREAT ENTITLED TO REAL PROPERTY TAX EXEMPTION FOR ENTIRE PROPERTY, NOT JUST THE DEVELOPED PORTION.

The Second Department, reversing Supreme Court, determined the owner of a retreat (Greentree, a non-profit) )was entitled to a real property tax exemption for the entirety of the property, not just the developed portion:

On this appeal, the record supports the conclusion that Greentree is organized exclusively for an exempt purpose within the meaning of RPTL 420-a(1)(a), and that its conference center was used for that exempt purpose during the tax year 2013/2014 … . Indeed, the Assessors do not dispute this conclusion. Rather, the Assessors contend that undeveloped portions of the property are not integral to the use of the structures on the property as a retreat and conference center, and thus, the entire subject property is not “used exclusively” for carrying out Greentree’s exempt purpose as required by RPTL 420-a(1)(a).

The term “exclusively,” in the context of RPTL 420-a, “is not to be read literally” … , and “has been broadly defined to connote principal or primary such that purposes and uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption” … . “Thus, whether property is used exclusively’ for purposes of section 420-a is dependent upon whether the primary use’ of the property is in furtherance of permitted purposes” … .

Here, Greentree demonstrated that the entire property should be considered as a single unit and that it is used exclusively for tax exempt purposes. More specifically, Greentree offered proof that the undeveloped area is an integral part of the property, regardless of the frequency of use, because it served to preserve the character of the remaining property and, thus, is entitled to exemption … . Matter of Greentree Found. v Assessor & Bd. of Assessors of County of Nassau, 2016 NY Slip Op 05861, 2nd Dept 8-24-16

 

REAL PROPERTY TAX LAW (NON-PROFIT RETREAT ENTITLED TO REAL PROPERTY TAX EXEMPTION FOR ENTIRE PROPERTY, NOT JUST THE DEVELOPED PORTION)/TAX EXEMPTION (REAL PROPERTY, NON-PROFIT RETREAT ENTITLED TO REAL PROPERTY TAX EXEMPTION FOR ENTIRE PROPERTY, NOT JUST THE DEVELOPED PORTION)

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REFEREE’S ALLEGED VIOLATION OF A LOCAL COURT RULE DID NOT WARRANT SETTING ASIDE THE FORECLOSURE SALE.

The Second Department, reversing Supreme Court, determined the referee’s alleged setting of an “upset price” which violated Kings County Supreme Court Civil Term Rules did not warrant setting aside the foreclosure sale:

RPAPL 231 provides, in relevant part, that a court, within one year after a foreclosure sale, “may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect” (RPAPL 231[6]). ” In the exercise of its equitable powers, a court has the discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct'” … . In order to provide a basis for setting aside a sale, the evidence of fraud, collusion, mistake, or misconduct must cast suspicion on the fairness of the sale … . Furthermore, evidence of a unilateral mistake at the foreclosure sale, without more, does not provide a basis to invalidate a sale that was otherwise lawfully conducted … , and belated and unsubstantiated claims are insufficient to establish the existence of fraud, collusion, mistake, or misconduct … . Moreover, mere irregularities by a referee may be disregarded if they do not affect a substantial right of a party … . Clinton Hill Holding 1, LLC v Kathy & Tania, Inc., 2016 NY Slip Op 05844, 1st Dept 8-24-16

FORECLOSURE (REFEREE’S ALLEGED VIOLATION OF A LOCAL COURT RULE DID NOT WARRANT SETTING ASIDE THE FORECLOSURE SALE)

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MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE.

The Second Department, in an extensive decision covering several marital/separate property and equitable distribution issues not summarized here, determined the maintenance portion of a 1988 postnuptial agreement was unconscionable and therefore unenforceable:

Here, the Supreme Court properly determined that the maintenance provision of the 1988 postnuptial agreement, which provided the plaintiff with only $50,000 in full satisfaction of all claims, would be unconscionable by the time a final judgment would be entered in this action. At the time that the parties executed the 1988 postnuptial agreement, the defendant owned, among other things, a jewelry business worth at least $3 million, and he was in contract to buy a shopping center. Thereafter, during more than 25 years of marriage, the defendant’s jewelry business underwent tremendous growth while the plaintiff worked there, and the parties lived what can easily be described as a lavish lifestyle. Among other things, they owned numerous high-end automobiles and took numerous international vacations. For a time, they traveled regularly to the Bahamas on the defendant’s yacht. Under all the circumstances, the court properly determined that the maintenance provision in the 1988 agreement was unconscionable and, thus, unenforceable … . Maddaloni v Maddaloni, 2016 NY Slip Op 05851, 2nd Dept 8-24-16

FAMILY LAW (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE)/CONTRACT LAW (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSIONABLE)/UNCONSCIONABLE CONTRACT (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE)

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COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT.

The Second Department determined the trial judge should have determined the value of the marital residence before awarding sole title to plaintiff:

We remit the matter for a new trial on the issue of equitable distribution of marital property. Although the parties came forward with a paucity of evidence regarding the value of the marital residence, the Supreme Court was nevertheless required to determine the value of the property before awarding sole title to the plaintiff. “A determination must be made as to the net value of each asset before determining the distribution thereof” … . In circumstances where proof of value is insufficient to make a determination, the court has discretion to, among other things, appoint a neutral appraiser and to direct that such appraiser be paid by one or both parties … . Further, the court erred in failing to value and equitably distribute the defendant’s investment in a rental property located in North Carolina and the parties’ remaining interest in property located in Costa Rica. Van Dood v Van Dood, 2016 NY Slip Op 05858, 2nd Dept 8-24-16

FAMILY LAW (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EVIDENCE (FAMILY LAW, COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/MARITAL PROPERTY (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EQUITABLE DISTRIBUTION (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)

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CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL.

The Second Department determined Criminal Procedure Law 440.30 (1-a) did not authorize defendant to challenge, in a post-trial motion, DNA evidence which was introduced at trial. The statute deals only with post-trial DNA testing:

CPL 440.30 (1-a) (a) (1) provides that a defendant may bring a postconviction motion requesting forensic DNA testing of “specified evidence.” The statute further provides that “the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant” (CPL 440.30 [1-a] [a] [1]). As the Court of Appeals has recognized, CPL 440.30 (1-a) was enacted to establish a new procedure for defendants to secure DNA testing of specified evidence … ..

Defendant here has not requested DNA testing of any evidence, and instead seeks to have expert testimony adduced for the purpose of challenging the accuracy of scientific evidence that was actually presented at trial. Inasmuch as CPL 440.30 (1-a) does not address requests for expert testimony, the provision is inapplicable to defendant’s request. People v Ramos, 2016 NY Slip Op 05885, 3rd Dept 8-25-16

CRIMINAL LAW (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)/EVIDENCE (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)/DNA (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)

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