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HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED.

The Third Department determined petitioner was entitled to a new hearing. An inmate petitioner wished to call as a witness refused to testify, giving a reason which was on its face untrue. In that circumstance, the hearing officer was obligated to inquire further into the reason for the inmate’s refusal:

During the disciplinary hearing, petitioner requested the testimony of the other inmate who was present in the room at the time of the incident. The Hearing Officer contacted that inmate, who refused to testify and executed a refusal form stating, “I know nothing.” This statement, however, is belied by evidence in the record. According to the unusual incident report, the potential inmate witness informed correction officers that petitioner “stabbed [the victim] with the weapon that was found in the garbage can.” Notably, the Hearing Officer specifically referenced the witness’s account of the incident in his statement of the evidence that he relied on in making the determination of guilt. Inasmuch as evidence in the record “casts doubt on the authenticity of the reason[] given” for the witness’s refusal … , and there is nothing in the record indicating that the Hearing Officer made any further inquiry, we find that petitioner’s right to call witnesses was violated … . Insofar as the Hearing Officer articulated a good-faith reason for the denial of the witness, “this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Peterson v Annucci, 2016 NY Slip Op 05681, 3rd Dept 7-28-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED)/INMATES (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S DISCIPLINARY HEARING, NEW HEARING ORDERED)

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PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED.

The Third Department determined meth-lab evidence and defendant’s Mirandized statements should have been suppressed. The police were called to an apartment and heard the sounds of a physical altercation inside. The police opened the unlocked door and separated the two men who were fighting. Defendant then came out the bathroom and was asked to sit down. The officers heard someone in the back bedroom which defendant rented. Defendant told the police his wife was in the back bedroom. The officers knocked on the locked bedroom door and defendant’s wife said she had to get dressed. She then came out of the bedroom into the living room. One of officers smelled a chemical odor in the back bedroom, went in, lifted up a shirt and found the meth lab equipment. The Third Department held that a protective sweep of the back bedroom was not justified (the concurrence disagreed). In addition the Third Department determined the People did not demonstrate defendant’s Mirandized statements were sufficiently attenuated from the improper questioning of the defendant at the apartment. With regard to the protective sweep, the court wrote:

… [T]he question is whether, on these facts, the officers were entitled to enter and look under clothing in defendant’s bedroom as part of a protective sweep, which “is a quick and limited search of premises . . . conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding” … . Recognizing the dangers faced by police officers who enter homes, the Supreme Court of the United States has held that officers may, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” … . Beyond that precautionary measure, the Court held that, to conduct a further protective sweep, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene” … . People v Harris, 2016 NY Slip Op 05670, 3rd Dept 7-28-16

 

CRIMINAL LAW (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENTUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/ATTENUATION (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)

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OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK.

The Third Department determined the Oklahoma statute prohibiting possession of a firearm could not be used as a predicate felony in New York. The Oklahoma statute does not have an operability element. In New York operability is a required element:

County Court erred in sentencing defendant as a second felony offender, as the elements of his predicate Oklahoma felony were not “equivalent to those of a New York felony” … . As relevant here, the inquiry regarding equivalency is “limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” … . Defendant was previously convicted under an Oklahoma statute prohibiting possession of a firearm by a felon; however, operability is not a required element of the Oklahoma statute … . In New York “[o]perability is a required element of the crime of criminal possession of a handgun, rifle or shotgun” … . Thus, as the comparable New York statute requires an element that the Oklahoma crime does not, defendant’s Oklahoma conviction cannot support a finding that he was a second felony offender … . People v Gibson, 2016 NY Slip Op 05668, 3rd Dept 7-28-16

CRIMINAL LAW (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/PREDICATE FELONY (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SENTENCING (SECOND FELONY OFFENDER, OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)

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ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED.

The Second Department, reversing the defense verdict, determined the trial court should not have given the jury the “error in judgment” charge in this medical malpractice action. Plaintiff alleged defendant negligently diagnosed a lump as benign without any further diagnostic tests. The “error in judgment” theory does not apply in that circumstance:

… Supreme Court erred in giving an “error in judgment” charge (PJI 2:150 ¶ 5) over the plaintiff’s objection. “That charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … . Contrary to the defendant’s contention, this case does not present a choice between one of two or more medically acceptable alternative treatments or techniques … . Rather, the defendant testified that he diagnosed the decedent, in January of 2002, with a benign condition “that was not urgent,” and he neither suspected cancer nor considered the option of sending the decedent for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent with a benign condition in January of 2002, and the “error in judgment” charge was not warranted … . Lacqua v Silich, 2016 NY Slip Op 05628, 2nd Dept 7-27-16

NEGLIGENCE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/MEDICAL MAPRACTICE ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/JURY CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/ERROR IN JUDGMENT CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)

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NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT.

The Second Department determined the City emergency response personnel did not enter into a special relationship with plaintiff’s decedent based upon the 911 operator’s assurance an ambulance was on its way. There was some confusion about where plaintiff’s decedent was located which resulted is some delay in the arrival of help:

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that no special relationship existed between it and the decedent … . The defendant demonstrated, prima facie, that the firefighters did not assume an affirmative duty to act on the decedent’s behalf, and, in opposition, the plaintiffs failed to raise a triable issue of fact … . Moreover, even assuming that the 911 operator’s assurance that an ambulance was on its way constituted an assumption by the defendant of an affirmative duty to act on behalf of the decedent, the defendant demonstrated, prima facie, that the decedent and the plaintiffs did not rely to their detriment on that assurance. In opposition, the plaintiffs failed to raise a triable issue of fact. The record does not show that the plaintiffs were lulled by any assurance made by the 911 operator into a false sense of security that caused them “to forego other available avenues of protection” … . Holloway v City of New York, 2016 NY Slip Op 05627, 2nd Dept 7-27-16

MUNICIPAL LAW (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/ GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/NEGLIGENCE (GOVERNMENTAL IMMUNITY, (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)

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SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED.

The Second Department determined a worksite “safety consultant” (PSS) did not exercise sufficient supervisory control to be held liable under the Labor Law. Plaintiff was injured when he fell through a plywood covered hole in a ramp. The decision has detailed recitations of the black letter law requirements for Labor law 240(1), 241 (6) and 200 causes of action:

PSS submitted evidence demonstrating that its role at the work site was only one of general supervision, and that it did not have the authority to control the work performed or the safety precautions taken by the general contractor and the plaintiff’s employer, which is insufficient to impose liability on a safety consultant under the Labor Law … .

“To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'” … . ” A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed'” … . ” [T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'” … . Where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a contractor may be liable under Labor Law § 200 ” only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it'” … . Moreover, an entity is not deemed to be an agent of an owner or contractor for purposes of Labor Law § 200 if it “lacked sufficient control over the premises and the activity that brought about the injury” … . Marquez v L & M Dev. Partners, Inc., 2016 NY Slip Op 05631, 2nnd Dept 7-27-16

 

LABOR LAW (SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED)/SAFETY CONSULTANT (LABOR LAW, (SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED)

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CRITERIA FOR REVEIW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED.

The Second Department, upholding Family Court’s custody determination, offered a concise description of the analytical criteria:

There is “no prima facie right to the custody of the child in either parent” … . The essential consideration in making an award of custody is the best interests of the children … , which are determined by a review of the totality of the circumstances … . In making a determination as to what custody arrangement is in the children’s best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children’s emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children’s relationship with the other parent … . The court should also consider the children’s wishes, weighed in light of their ages and maturity … . “As a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record” … . Matter of Schultheis v Schultheis, 2016 NY Slip Op 05648, 2nd Dept 7-27-16

FAMILY LAW (CRITERIA FOR REVIEW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED)/CUSTODY (CRITERIA FOR RREVEIW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED)/APPPEALS (FAMILY LAW, CRITERIA FOR REVIEW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED)

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RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE JURISDICTION CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED.

The Second Department, reversing defendant’s conspiracy conviction, determined the difference between the jurisdictional allegations in the indictment and the jurisdiction theory relied on at trial deprived defendant of fair notice of the charges against him:

Proof at trial that varies from an indictment may compromise the defendant’s right to fair notice of the charges and his or her right to have those charges determined by the grand jury … . Here, the indictment alleged jurisdiction in Kings County on the basis of overt acts committed in Kings County. However, the proof at trial did not support that theory and, as charged to the jury, jurisdiction in Kings County was based on conduct which had, or was likely to have, a particular effect upon Kings County pursuant to CPL 20.40(2)(c). As the evidence presented at trial varied from the indictment, and, contrary to the People’s contention, the defendant did not have fair notice of the jurisdictional theory presented to the jury, the judgment convicting the defendant of conspiracy in the second degree must be reversed and the matter remitted to the Supreme Court, Kings County, for a new trial … . People v Wilson, 2016 NY Slip Op 05660, 2nd Dept 7-27-16

CRIMINAL LAW (RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE JURISDICTION CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED)/INDICTMENTS (RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE JURISDICTIONAL CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED)/JURISDICTION (CRIMINAL LAW, CONSPIRACY CHARGE, RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE  JURISDICTIONAL CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED)

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WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT.

The Second Department, in a full-fledged opinion by Justice Balkin, determined, where liability is conceded by stipulation, prejudgment interest runs from the date of the subsequent damages verdict, not the date of the stipulation. Here the damages trial was held 2 1/2 years after the stipulation was entered. Had liability been determined by “verdict, report or decision,” interest would have run from the liability determination:

When the determinations of liability and damages are made together, the computation of prejudgment interest under CPLR 5002 is straightforward … . When, however, the determinations of liability and damages are bifurcated, the general rule is that prejudgment interest under CPLR 5002 runs from the date of the “verdict, report or decision” as to liability, rather than from the date of the “verdict, report or decision” as to damages … . * * *

Stipulations are different. They are not adjudications made by a third party, but voluntary agreements, or contracts, by which the opposing parties themselves chart their own course in a way that makes sense for them… . * * *

Clearly, the Legislature did not expressly include stipulations in CPLR 5002. Had the Legislature wished to include stipulations, it easily could have done so, as it has in other statutes… . Mahoney v Brockbank, 2016 NY Slip Op 05630, 2nd Dept 7-27-16

 

CIVIL PROCEDURE (WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/NEGLIGENCE (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/PREJUDGMENT INTEREST (WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/INTEREST (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/DAMAGES (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)

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PROPER VENUE FOR CONSOLIDATED ACTIONS STARTED IN DIFFERENT COUNTIES IS THE COUNTY WHERE THE FIRST ACTION WAS STARTED.

The Second Department determined the proper venue for consolidated actions which had been started in different counties was the county in which the first action was started:

… [I]n the absence of special circumstances, where the actions have been commenced in different counties, venue should be placed in the county having jurisdiction over the action commenced first … . Since venue properly lies in Richmond County with respect to this action, the first of the three subject actions to be commenced, venue of the action commenced in the Supreme Court, Kings County, and venue of the action commenced in the Civil Court, Queens County, should have been transferred to Richmond County. Oboku v New York City Tr. Auth., 2016 NY Slip Op 05635, 2nd Dept 7-27-16

CIVIL PROCEDURE (PROPER VENUE FOR CONSOLIDATED ACTIONS STARTED IN DIFFERENT COUNTIES IS THE COUNTY WHERE THE FIRST ACTION WAS STARTED)/VENUE (PROPER VENUE FOR CONSOLIDATED ACTIONS STARTED IN DIFFERENT COUNTIES IS THE COUNTY WHERE THE FIRST ACTION WAS STARTED)

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