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SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST PROVISIONS WERE UNAMBIGUOUS, RECOVERY LIMITED TO THE DIFFERENCE BETWEEN THE AMOUNT RECOVERED UNDER THE TORTFEASOR’S POLICY AND $50,000, HERE THE DIFFERENCE WAS ZERO.

The Second Department determined the relevant supplemental uninsured/underinsured motorist (SUM) provisions of appellant's policy were unambiguous and limited recovery for the death of appellant's daughter to a total of $50,000. Appellant argued the policy allowed recovery of the $50,000 limit, despite recovery of $50,000 under the tortfeasor's policy:

Based upon the … provisions of the policy, the Supreme Court properly found that the $50,000 recovered by the appellant from the tortfeasor was equivalent to the maximum SUM limit provided for in the policy. Therefore, the appellant had no possibility of an additional recovery, which rendered her SUM claim academic … . The language of the SUM endorsement was not ambiguous and must be enforced … . Matter of Ameriprise Auto & Home Ins. Co. v Savio, 2016 NY Slip Op 02358, 2nd Dept 3-30-16

INSURANCE LAW (SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST PROVISIONS WERE UNAMBIGUOUS, RECOVERY LIMITED TO THE DIFFERENCE BETWEEN THE AMOUNT RECOVERED UNDER THE TORTFEASOR'S POLICY AND $50,000, HERE THE DIFFERENCE WAS ZERO)/SUPPLEMENATAL UNINSURED/UNDERINSURED MOTORIST (SUM) COVERAGE (SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST PROVISIONS WERE UNAMBIGUOUS, RECOVERY LIMITED TO THE DIFFERENCE BETWEEN THE AMOUNT RECOVERED UNDER THE TORTFEASOR'S POLICY AND $50,000, HERE THE DIFFERENCE WAS ZERO)/CONTRACT LAW (INSURANCE POLICY, SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST PROVISIONS WERE UNAMBIGUOUS, RECOVERY LIMITED TO THE DIFFERENCE BETWEEN THE AMOUNT RECOVERED UNDER THE TORTFEASOR'S POLICY AND $50,000, HERE THE DIFFERENCE WAS ZERO)

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JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED.

The Second Department determined defendant's conviction must be reversed because the trial court should have granted defense counsel request to excuse a prospective juror for cause. The juror said she “didn't know” whether the sexual assault of her aunt would affect her ability to judge the sexual-offense case for which the jury was being selected:

Here, during voir dire, one prospective juror indicated that because her aunt had been the victim of a violent sexual assault, it would “be a little bit hard” for her to keep an open mind when listening to the facts of this case. When asked whether she could “give the defendant in this case a fair trial,” she responded, “I can manage. Yes.” When asked if it was possible that her judgment in this case might be affected by her aunt's case, she responded, “Might.” The Supreme Court also asked the prospective juror if the fact that this case did not involve a sex crime would “change things” for her, and she responded, “Part of it. Yeah.” The prospective juror confirmed that she would refrain from blaming the defendant for what happened to her aunt or favoring the prosecution for successfully prosecuting her aunt's assailant, but when asked again by defense counsel whether her aunt's experience “might affect [her] ability to judge this case,” the juror paused and finally said, “I don't know.” The court denied the defendant's challenge for cause to this prospective juror. The defense then exercised a peremptory challenge to remove her and exhausted all of its peremptory challenges prior to the end of jury selection.

At no point did the prospective juror unequivocally state that her prior state of mind would not influence her verdict, and that she would render an impartial verdict based solely on the evidence. Under the circumstances, the Supreme Court should have granted the defense's challenge for cause to this prospective juror … . People v Malloy, 2016 NY Slip Op 02380, 2nd Dept 3-30-16

CRIMINAL LAW (JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED)FOR CAUSE JUROR CHALLENGE (JUROR SHOULD HAVE BEEN EXCUSED FOR CAUSE, CONVICTION REVERSED)

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DEFENDANT’S DEATH PRIOR TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY.

In this foreclosure action, the Second Department determined plaintiff bank's motion for summary judgment should not have been entertained because defendant had died before the motion was brought. The order appealed from was therefore a nullity:

Here, the deceased defendant died before the plaintiff's motion was made and before the order appealed from was issued. The attorney who had represented the deceased defendant prior to his death purportedly took this appeal on behalf of, among others, the deceased defendant. However, since a substitution of parties had not been effected prior to the filing of the notice of appeal, counsel lacked the authority to act for the deceased defendant, and the purported appeal taken on behalf of the deceased defendant must be dismissed … . Furthermore, since no substitution was made prior to the entry of the order appealed from, the order appealed from is a nullity to the extent that it pertains to the deceased defendant, and we vacate so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the deceased defendant … .

Similarly, in this case, since a proper substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff's motion, even to the extent that the plaintiff sought relief against the other defendants … . Aurora Bank FSB v Albright, 2016 NY Slip Op 02307, 2nd Dept 3-30-16

CIVIL PROCEDURE (DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/JURISDICTION (DEATH, DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/TRUSTS AND ESTATES (DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/APPEALS (DEATH, DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)

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IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissenting opinion by Judge Fahey, determined the defendant should have been allowed to submit evidence of third-party culpability and ordered a new trial in this felony murder/rape case. The majority acknowledged the evidence against defendant was overwhelming. However, the third-party culpability evidence—hearsay admissions about the crime allegedly made to the declarant's cellmate in prison—qualified as statements against penal interest. Applying a balancing test, the Court of Appeals concluded the probative value of the hearsay was such that it was an abuse of discretion, as a matter of law, to exclude it:

Where, as here, the defendant makes an offer of proof to the court explaining the basis for a third-party culpability defense and connecting the third-party to the crime, and the probative value of the evidence “plainly outweighs the dangers of delay, prejudice and confusion,” then it is “error as a matter of law” to preclude the defendant from presenting such proof to the jury… .People v DiPippo, 2016  NY Slip Op 02279, CtApp 3-29-16

CRIMINAL LAW (IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/EVIDENCE (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/HEARSAY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/STATEMENT AGAINST PENAL INTEREST  (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/THIRD-PARTY CULPABILITY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)

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PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION; PEOPLE’S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT; EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined (1) the People did not improperly call an eyewitness to the shooting to invoke his privilege against self-incrimination in front of the jury; (2) the People were properly allowed to impeach the eyewitness with his statement made to police at the time of the incident; and (3) expert testimony offered by the defense on the effect of “event stress” on the identification of the defendant was properly precluded. A Frye hearing was not required before preclusion. The expert witness was allowed to testify about “weapon focus” and “witness confidence.” With respect to a witness' invocation of the privilege against self-incrimination in front of the jury, the court explained the analytical criteria:

The Fifth Amendment of the United States Constitution directs that no person “shall be compelled in any criminal case to be a witness against himself” (US Const Amend V). When a witness invokes the Fifth Amendment privilege in front of the jury, “the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial” … . It is therefore reversible error for the trial court to permit the prosecutor to deliberately call a witness for the sole purpose of eliciting a claim of privilege … . The critical inquiry is whether the prosecution exploited the witness's invocation of the privilege, either by attempting “to build its case on inferences drawn from the witness's assertion of the privilege” or utilizing those inferences to “unfairly prejudice [the] defendant by adding 'critical weight' to the prosecution's case in a form not subject to cross-examination” … . People v Berry, 2016 NY Slip Op 02283, CtApp 3-29-16

CRIMINAL LAW (PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/CRIMINAL LAW (PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/CRIMINAL LAW (EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/EVIDENCE (CRIMINAL LAW, PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/EVIDENCE (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/IDENTIFICATION (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)

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REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissenting opinion, determined the redacted statement of a co-defendant (Villanueva), in its written form, left no doubt that the statement implicated defendant in this gang-assault murder case.  The error was not harmless and defendant's conviction was therefore reversed:

… [T]he written statement was not “effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant[s]” … . Rather, the statement, with large, “blank [spaces] prominent on its face, . . . 'facially incriminat[ed]'” a codefendant because it “involve[d] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial” … . Any juror “wonder[ing] to whom the blank might refer need[ed] only lift his [or her] eyes to [Villanueva's codefendants], sitting at counsel table, to find what [would] seem the obvious answer” … . In our view, the replacement of the identifying descriptors of defendant with blank spaces did not leave “the slightest doubt as to whose name[] had been blacked out, but even if there had been, that blacking out itself would have not only laid the doubt but underscored the answer” … , particularly after the court instructed the jury that it was not to speculate about the redactions in any way. The redacted statement both “indicat[ed] to the jury that the original statement contained actual names” or clearly identifying descriptors and, “even if the very first item introduced at trial[,] [it] would immediately inculpate [a codefendant] in the charged crime”  … . Therefore, we conclude that its admission violated the Bruton rule. People v Cedeno, 2016 NY Slip Op 02281, CtApp 3-29-16

Similar issue and result in a full-fledged opinion by Judge Rivera, over a three-judge dissenting opinion— People v Johnson, 2016 NY Slip Op 02282, CtApp 3-29-16

CRIMINAL LAW (REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/BRUTON RULE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)

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PROCEDURE USED TO EXCUSE PROSPECTIVE JURORS ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR; FAILURE TO OBJECT TO PROSECUTOR’S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion by Judge Rivera, determined the procedure used by the trial judge to excuse prospective jurors on hardship grounds was not a mode of proceedings error warranting reversal in the absence of preservation. At the outset of jury selection, the judge told the prospective jurors the trial might take five days. Anyone who felt they could not sit for five days was then allowed to leave the courtroom with the clerk who would evaluate the extent of the hardship.  The Court of Appeals held the hardship questioning occurred prior to formal voir dire and did not concern a prospective juror's fitness to serve, thereby distinguishing cases where the judge was absent during formal voir dire. The Court of Appeals further determined defense counsel's failure to object to the prosecutor's remarks in summation which appealed to gender bias did not constitute ineffective assistance of counsel. The defendant in this assault /burglary case was a woman, as was the victim. The victim's boyfriend was the father of defendant's children. To counter the defendant's argument that the attacker was a male, the prosecutor told the jury the case was about “jealousy” and “obsession” and “only a woman” would inflict “this kind of injury.” With respect to the juror-hardship issue, the court explained:

Preservation is particularly important in a case like this because the defense, faced with the prospect that certain prospective jurors were claiming that they were unable to serve due to hardship, may very well have made a strategic decision not to challenge the procedure because he did not want to risk having those prospective jurors end up on the jury when it became apparent that they did not wish to serve. If defense counsel had an objection to the procedure employed by the trial court, he should have voiced it so that the court could have corrected any alleged error. People v King, 2016 NY Slip Op 02278, CtApp 3-29-16

CRIMINAL LAW (ALLOWING CLERK TO EVALUATE JURORS' REQUESTS TO BE EXCUSED ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/APPEALS (CRIMINAL LAW, ALLOWING CLERK TO EVALUATE JURORS' REQUEST TO BE EXCUSED FROM SITTING ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/ATTORNEYS (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED.

The Fourth Department determined plaintiffs raised a question of fact whether a nail gun was defectively designed based upon an affidavit from an expert engineer. The nail gun could be operated in a “bump” mode where the nail is released when the tip of the gun comes into contact with a surface. And the nail gun could be operated by squeezing a trigger. Here the nail gun was in “bump” mode when it came into contact with plaintiff's head and a three-inch nail went into plaintiff's brain:

Plaintiffs' expert opined to a reasonable degree of engineering certainty that the nail gun is defective “because it did not have[,] as a sole means of actuation, a full sequential trip trigger” and instead also provided for the option for a “contact trip” or a bump trigger. The expert explained that the center of gravity of the nail gun causes the operator to maintain a finger on the trigger when lowering the nine-pound gun, as was the case here; that the sequence of the use of the trigger to determine the mode of operation causes operator confusion as to which mode of operation is in use, which he opined happened here based upon the testimony of the employee that he thought the nail gun was in sequential fire mode; that government safety studies he reviewed found a much higher rate of injury when the nail gun was in the bump mode; and that tests he performed and studies he reviewed established that the utility of the bump mode does not outweigh the danger of its use because it is “only 10% faster” than the sequential fire mode … . ” Where, as here, a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is usually for the jury to make the required risk-utility analysis' ” … . Terwilliger v Max Co., Ltd., 2016 NY Slip Op 02226, 4th Dept 3-25-16

PRODUCTS LIABILITY (EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED)/DEFECTIVE DESIGN (PRODUCTS LIABILITY, EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED)

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STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE.

The Fourth Department concluded sanctions for spoliation of evidence were appropriate, but striking defendant's pleadings was too severe a sanction. Plaintiff alleged injury from glass which fell out of defendant's (IGT's) video slot machine. Although the complaint was filed in 2008, the request to maintain the condition of the machine was not made until 2010 and the request to examine the machine was not made until 2011. The machine had been scrapped in the regular course of business in 2008:

… [W]e conclude that plaintiffs established that some sanction is warranted because IGT negligently failed to preserve the machine, but plaintiffs failed to show that the destruction of the machine was intentional or contumacious, to warrant the sanctions imposed by the court. To the contrary, the only evidence in the record concerning this issue is that IGT scrapped the machine in the normal course of business, as part of the removal and destruction of a large number of machines to create additional space in the casino. In addition, IGT established that the machine was removed from the casino at the request of the casino's owners, who were no longer parties to this action, which belies plaintiffs' contention that IGT removed and destroyed the machine for litigation purposes.

Contrary to plaintiffs' further contention, they failed to establish that the machine was destroyed before they had an opportunity to inspect it, and thus plaintiffs failed to establish that the extreme sanctions of striking IGT's answer and granting plaintiffs partial summary judgment on liability against IGT were warranted … . Mahiques v County of Niagara, 2016 NY Slip Op 02190, 4th Dept 3-25-16

NEGLIGENCE (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)/EVIDENCE (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)/SPOLIATION (STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE)

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PLAINTIFF’S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT.

The Fourth Department determined Supreme Court should not have considered allegations of a serious injury in a car-accident case which were raised for the first time in a “supplemental verified bill of particulars” submitted in opposition to defendant's summary judgment motion:

… [D]efendant filed the instant motion for summary judgment seeking dismissal of plaintiffs' complaint for failure to meet the serious injury threshold and for failure to incur economic loss exceeding basic economic loss. In opposition to the motion, plaintiffs submitted, inter alia, a “supplemental verified bill of particulars” in which they added an allegation that plaintiff had sustained a serious injury under the significant disfigurement category of serious injury (Insurance Law § 5102 [d]). Defendant objected to plaintiffs' attempt to ” supplement' ” their bill of particulars in opposition to the motion.

Supreme Court granted defendant's motion insofar as it concerned plaintiffs' claims for economic loss, but denied the motion “in all other respects.” In its decision supporting the order, the court wrote that the evidence submitted by plaintiffs raised triable issues of fact on all three categories of serious injury. Only defendant appeals.

We agree with defendant that plaintiffs improperly asserted a “new injury” in their “supplemental verified bill of particulars” (CPLR 3043 [b] …), and that the court erred in considering that new category of serious injury inasmuch as it was raised for the first time in opposition to defendant's motion for summary judgment … . We thus conclude that the claim of significant disfigurement was not cognizable by the court … , that it was error for the court to consider the new injury claim … , and that the court should have disregarded evidence related to that category of serious injury … . Stamps v Pudetti, 2016 NY Slip Op 02272, 4th Dept 3-25-16

NEGLIGENCE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)/CIVIL PROCEDURE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)

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