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EVIDENCE OF AN UNRELATED DRUG SALE WAS NOT ADMISSIBLE TO SHOW DEFENDANT’S MOTIVE, CONVICTION REVERSED.

The Third Department reversed defendant’s conviction in a drug-sale case because evidence of a prior unrelated drug sale was allowed to be introduced. There was no issue in the case to which the prior crime pertained. The evidence was not necessary to demonstrate defendant’s motive. The prejudicial effect of the evidence, therefore, outweighed its probative value:

 

Evidence of prior bad acts or uncharged crimes may be admissible to show motive to commit a crime under one of the traditional Molineux exceptions — where the probative value exceeds its prejudicial effect … . That said, “there is usually no issue of motive in a drug sale case, as the seller’s motivation is nearly always financial gain” … . Moreover, “evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his [or her] past” … . The [evidence in question] is highly suggestive of an illicit drug transaction, and it is difficult to discern any relevant impact other than to show defendant’s criminal propensity. As this case largely turned on [a witness’] credibility, we cannot characterize the error in admitting this evidence as harmless, notwithstanding County Court’s curative instruction … . People v Magee, 2016 NY Slip Op 00399, 3rd Dept 1-21-16

 

CRIMINAL LAW (EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/MOLINEUX (EVIDENCE OF UNRELATED PRIOR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)

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WHERE A WITNESS STATES SHE DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT.

The Third Department determined County Court properly denied defense counsel’s request to enter the victim’s statement in evidence as a prior inconsistent statement. The court explained that, where a witness states she does not recall making a statement, it is necessary to call a witness who was present when the statement was made to lay a proper foundation for admission. The court also noted that the statement was not so inconsistent with the witness’ testimony as to warrant its use in cross-examination. With respect to the foundation for the evidence, the court wrote:

 

“It is well established that a witness’ prior inconsistent statements may be used to impeach his [or her] trial testimony [a]nd the test of inconsistency . . . is not limited to outright contradictions between a witness’ prior statements and his [or her] trial testimony” … . However, before a witness may be impeached with such a statement, a proper foundation must be laid … , and, “[i]f the witness denies that the statement was made or does not remember making it, he or she may be impeached by the testimony of others who heard the statement” … .

Here, while cross-examining the victim at trial, defense counsel questioned her about the statement that she gave to State Trooper Joseph Smith several hours after the attack occurred. Specifically, counsel asked the victim if she remembered giving a statement to Smith, to which she said, “I don’t recall. I don’t remember a lot.” Counsel then asked, “You don’t remember giving a statement?” to which the victim answered, “I remember giving a statement, yes, I do, but everything was jumbled.” Counsel then asked if the victim remembered telling Smith that she was sleeping on the couch just before the altercation. The victim denied making such statement and explained that she told Smith that she was lying on the couch trying to go to sleep. After being shown the statement by counsel, the victim confirmed that it was, in fact, the statement she vaguely recalled being read to her by Smith and that she had signed. Defendant then unsuccessfully attempted to offer the victim’s statement into evidence. County Court sustained the People’s hearsay objection, noting that Smith was available to be called as a witness and questioned with regard to the victim’s statement. Inasmuch as defendant failed to lay a proper foundation for admission of this hearsay evidence, we find no abuse of discretion in County Court’s ruling. People v Maxam, 2016 NY Slip Op 00391, 3rd Dept 1-21-16

 

CRIMINAL LAW (WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/EVIDENCE (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION)

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THE PEOPLE’S STATEMENTS OF READINESS FOR TRIAL WERE DEEMED ILLUSORY; CASE DISMISSED ON SPEEDY TRIAL GROUNDS.

The First Department, over an extensive dissent, determined the People’s two statements of readiness (for trial) were illusory. The defendant’s case should have been dismissed on speedy trial grounds:

 

First, the People provided no explanation why, after filing and serving the certificate of readiness on August 30, 2011, shortly after defendant’s arraignment on August 25, 2011, they answered not ready at the next court date on September 7, 2011 … . Nothing in the record, express or inferred, explains their change in status from ready to not ready. As the People “gave no explanation for the change in circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed,” and the statement of readiness thus “did not accurately reflect the People’s position,” the People should have been charged with the entire period, a total of 70 days … . The People argue that the court did not ask for any reason, but the burden rests on the People to clarify, on the record, the basis for the adjournment … .

Second, after the People answered not ready on January 31, 2012, because the prosecutor was on trial in another case, the matter was adjourned to March 20, 2012. On February 7, 2012, the People filed and served a certificate of readiness. At the next court date, March 20, 2012, however, they again answered not ready because the prosecutor was on trial in another case. The court properly deemed the entire period chargeable to the People, “notwithstanding” the February 7, 2012 certificate of readiness, but should have also charged subsequent adjournments to the People. If the prosecutor was on trial at the prior and subsequent adjournments, it is unclear why the People filed and served an off-calendar certificate of readiness, or whether the prosecutor was on trial in the same or a different case. As a result, the February 7, 2012 certificate of readiness was illusory, and the entirety of subsequent adjournment periods (not merely the number of days the People requested), until the People next announced that they were ready, should have been charged to them. Specifically, the 50 days from March 20, 2012 until May 9, 2012, 61 days from May 9, 2012 to July 9, 2012, and 52 days from July 9, 2012, until August 30, 2012, when the People validly declared their readiness, should have been charged. People v Rodriguez, 2016 NY Slip Op 00423, 1st Dept 1-21-16

 

CRIMINAL LAW (SPEEDY TRIAL, PEOPLE’S STATEMENTS OF READINESS DEEMED ILLUSORY)/SPEEDY TRIAL (PEOPLE’S STATEMENTS OF READINESS DEEMED ILLUSORY)/STATEMENT OR READINESS (SPEEDY TRIAL, STATEMENTS OF READINESS DEEMED ILLUSORY)

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PLAINTIFFS HAD STANDING TO BRING A COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS BY VIRTUE OF THE CLOSE PROXIMITY OF PLAINTIFFS’ AND DEFENDANTS’ PROPERTIES.

The Second Department determined plaintiffs had standing to bring a private common-law action to enjoin zoning violations by virtue of the proximity of plaintiffs’ property to defendants’ property:

 

“To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant’s activities, he or she will sustain special damages that are different in kind and degree from the community generally’ and that the asserted interests fall within the zone of interest to be protected’ by the statute or ordinance at issue” … . However, “an allegation of close proximity may give rise to an inference of injury enabling a nearby property owner to maintain an action without proof of actual injury” … . Here, the record demonstrates that the plaintiffs’ property was in close proximity to the defendants’ property and that the plaintiffs’ interests “were within the zone of interest to be protected by the zoning ordinances alleged to be violated” … . Since the appellant failed to demonstrate that the plaintiffs lacked standing to maintain this action, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3)… . Gershon v Cunninghaml, 2016 NY Slip Op 00332, 2nd Dept 1-20-16

 

ZONING (STANDING FOR PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)/STANDING (PRIVATE COMMON-LAW ACTION TO ENJOIN ZONING VIOLATIONS)

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THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION WERE NOT ACCURATELY STATED IN THE JURY INSTRUCTIONS AND VERDICT SHEET; MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department reversed Supreme Court, in the interest of justice, because the jury instructions and verdict sheet did not accurately state the elements of malpractice based upon a lack of informed consent. Plaintiff’s motion to set aside the verdict should have been granted. The elements of a “lack of informed consent” cause of action were explained:

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove “(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … . ” To state it in other terms, the causal connection between a doctor’s failure to perform his [or her] duty to inform and a patient’s right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures actually performed. Once that causal connection has been established, the cause of action in negligent malpractice for failure to inform has been made out and a jury may properly proceed to consider plaintiff’s damages’ ” … . Figueroa-Burgos v Bieniewicz, 2016 NY Slip Op 00329, 2nd Dept 1-20-16

NEGLIGENCE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURIES (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURY INSTRUCTIONS (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/VERDICT SHEET (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/INFORMED CONSENT, LACK OF (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)

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GOLFER ASSUMED THE RISK OF SLIPPING ON A WET RAILROAD TIE WHICH LINED A PATH ON THE GOLF COURSE.

The Second Department, reversing Supreme Court, determined plaintiff golfer assumed the risk of slipping on a wet railroad tie which lined a path on the golf course:

 

Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played … .

“[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . Moreover, “[i]t is not necessary to the application of assumption of risk that the injured plaintiff [had] foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . While participants are not deemed to have assumed the risks of concealed or unreasonably increased risks … , if “the risks are fully comprehended or obvious and the plaintiff has consented to them, the defendant has satisfied its only duty of care which is to make the conditions as safe as they appear to be” … . Bryant v Town of Brookhaven, 2016 NY Slip Op 00323, 2nd Dept 1-20-16

 

NEGLIGENCE (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURSE PATH)/ASSUMPTION OF RISK (GOLFER ASSUMED RISK OF SLIPPING ON GOLF COURS PATH)

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ALLEGATION PLAINTIFF WAS TOLD NOT TO WORK ON THE DAY HE FELL FROM A SCAFFOLD PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR; THE DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK.

The Second Department, reversing Supreme Court, determined defendants had raised a triable issue of fact about whether plaintiff had their permission to work when plaintiff fell from a scaffold. The definition of an employee under the Labor Law includes “permission to work.” Here the defendants alleged plaintiff was specifically told not to work until certain demolition work was done:

The Labor Law defines “employee” as “a mechanic, workingman or laborer working for another for hire” (Labor Law § 2[5]), and “employed” as “permitted or suffered to work” (Labor Law § 2[7]). “To come within the special class for whose benefit absolute liability is imposed upon contractors, owners, and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent” … . Aslam v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 2016 NY Slip Op 00316, 2nd Dept 1-20-16

LABOR LAW (DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK, HERE ALLEGATION EMPLOYEE WAS TOLD NOT WORK RAISED ISSUE OF FACT ON LIABILITY)/EMPLOYEE (LABOR LAW DEFINITION INCLUDES REQUIREMENT THAT EMPLOYEE HAVE PERMISSION TO WORK)

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BANK DID NOT NEGOTIATE IN GOOD FAITH IN THE CPLR 3408 MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, CERTAIN SANCTIONS PROPERLY IMPOSED.

The Second Department determined Supreme Court properly found the bank did not negotiate in a mortgage foreclosure settlement conference (CPLR 3408(f)) in good faith and properly imposed certain sanctions on the bank:

 

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see CPLR 3408[f]…). ” The purpose of the good faith requirement [in CPLR 3408] is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution'” … . To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” … .

Here, contrary to the Bank’s contention, the totality of the circumstances support the Supreme Court’s conclusion that it failed to negotiate in good faith. The homeowner’s submissions demonstrated that the Bank, among other things, engaged in dilatory conduct by “making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided” … . The Bank failed to offer any evidence in opposition to the homeowner’s motion and did not controvert the homeowner’s account of the mandatory settlement negotiations. Accordingly, under the circumstances, the Supreme Court properly concluded that the Bank violated CPLR 3408(f) by failing to negotiate in good faith … . LaSalle Bank, N.A. v Dono, 2016 NY Slip Op 00340, 2nd Dept 1-20-16

 

FORECLOSURE (BANK DID NOT NEGOTIATE IN GOOD FAITH RE: MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (BANK DID NOT NEGOTIATE IN GOOD FAITH IN MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

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AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER THE DOCTRINE OF COMITY.

The Second Department determined an agreement, called a mahr agreement, which was part of a foreign Islamic divorce decree and which called for the payment to the wife of $250,000, was properly enforced by Supreme Court under the doctrine of comity:

 

“Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States” … . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York … . Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy … .

Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby … . Badawi v Alesawy, 2016 NY Slip Op 00317, 2nd Dept 1-20-16

 

FAMILY LAW (AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER DOCTRINE OF COMITY)/COMITY (AGREEMENT WHICH WAS PART OF FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED IN SUPREME COURT)

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GOOD CAUSE FOR A FIVE-YEAR EXTENSION OF AN ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED.

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Chambers, determined petitioner had made showing of “good cause” for the extension of an order of protection, and the court ordered a five-year extension. The court took the opportunity to define “good cause” in this context:

 

… [I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable … . * * *

The petitioner stated that, because they have a child in common, the parties continue to interact. They come into contact during litigation over custody and visitation issues and when they exchange the child at the drop-off location at the police station. The respondent also has a history of assaulting the petitioner, and their on-going discord continues. There is no evidence in the record to suggest that the petitioner’s more serious allegations were contrived. Moreover, it is undisputed that, since the entry of the subject order of protection, the respondent has pleaded guilty in the Criminal Court to disorderly conduct, and the Criminal Court has issued a two-year order of protection in favor of the petitioner. Therefore, it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well-founded, and that the unavoidable interactions between the parties may subject her to a reoccurrence of violence … . Matter of Molloy v Molloy, 2016 NY Slip Op 00366, 2nd Dept 1-20-16

 

FAMILY LAW (GOOD CAUSE FOR EXTENSION OF ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED)/ORDERS OF PROTECTION (FAMILY COURT, CRITERIA FOR DEMONSTRATION OF GOOD CAUSE FOR AN EXTENSION EXPLAINED)

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