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PRINCIPAL OFFICE OF A FOREIGN LIMITED LIABILITY COMPANY, AS LISTED ON THE DEPARTMENT OF STATE APPLICATION FOR AUTHORITY TO CONDUCT BUSINESS, IS THE CONTROLLING LOCATION FOR VENUE PURPOSES.

The Second Department, reversing Supreme Court, determined that appellant’s motion for a change of venue should have been granted. Appellants demonstrated that the foreign limited liability company’s application for authority to conduct business in New York listed a principal office in New York County. Plaintiff brought the action in Queens County, alleging appellant’s principal place of business is in Queens County.  The principal office in New York County, pursuant to Limited Liability Company Law 102[s], was the controlling location for venue purposes:

Pursuant to CPLR 503(a), the venue of an action is properly placed in the county in which any of the parties resided at the time of commencement … . In support of their motion, the appellants established that QPS was a resident of New York County at the time of commencement by producing a certified copy of QPS’s application for authority to conduct business filed with the New York State Department of State, which listed New York as the county in which its principal office was located … . The plaintiff did not dispute the fact that the application for authority designated New York County as the location of QPS’s principal office, but claimed that QPS is a resident of Queens County because that is the location of its principal place of business. However, the sole residence of a foreign corporation or a foreign limited liability company for venue purposes is the county where its principal office is located as designated in its application for authority to conduct business filed with the New York State Department of State, regardless of where it transacts business or maintains its actual principal office or facility (see CPLR 503[c]…). Such office need not be a place where business activities are conducted by the limited liability company … . Carlton Group, Ltd. v Property Mkts. Group, Inc., 2015 NY Slip Op 09423, 2nd Dept 12-23-15

CIVIL PROCEDURE (VENUE, PRINCIPAL OFFICE ON DEPARTMENT OF STATE APPLICATION IS THE CONTROLLING LOCATION OF A FOREIGN LIMITED LIABILITY COMPANY FOR VENUE PURPOSES)/VENUE (FOREIGN LIMITED LIABILITY COMPANY, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION)/LIMITED LIABILITY COMPANY, FOREIGN (FOR VENUE PURPOSES, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION IS CONTROLLING LOCATION)

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ANALYTICAL CRITERIA FOR MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, WHERE DEFENDANT SUBMITS EVIDENCE, CLEARLY EXPLAINED; PLAINTIFF IS NOT PENALIZED FOR NOT SUBMITTING EVIDENCE IN OPPOSITION; BURDEN NEVER SHIFTS TO PLAINTIFF.

The Second Department determined the complaint stated a cause of action for specific performance of a real estate contract. The court offered a clear explanation of the analytical criteria to be used when defendant submits evidence in support of a motion to dismiss for failure to state a cause of action. Here, the fact that plaintiff submitted no evidence in opposition was of no consequence. The evidence submitted by defendant was not sufficient to demonstrate, as a matter of law, the complaint did not state a cause of action:

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” … .

“A court is . . . permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” … . However, “on a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party” …, and a plaintiff “will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint” … . When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, “the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” … .

Contrary to the defendant’s contention, the complaint adequately alleged a cause of action for specific performance of a contract for the sale of real property. E & D Group, LLC v Vialet, 2015 NY Slip Op 09400, 2nd Dept 12-23-15

CIVIL PROCEDURE (MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, BURDEN NEVER SHIFTS TO PLAINTIFF EVEN IF DEFENDANT SUBMITS EVIDENCE)/MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION (BURDEN NEVER SHIFTS TO PLAINTIFF EVEN IF DEFENDANT SUBMITS EVIDENCE)

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FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A NOTE FROM THE JURY REQUIRED REVERSAL.

The Fourth Department determined the trial judge’s failure to apprise counsel of the specific, substantive contents of a jury note requesting a readback of testimony required reversal (in the absence of preservation):

As the court brought the jury into the courtroom to respond to the first two notes, the jury gave a third note to the court. The court told the jury that it would respond to the first two notes at that time, and would then discuss the issue raised in the third note with counsel after sending the jury back to the jury room. The court stated that the “third note [had] not yet [been] shown to counsel nor have we had an opportunity to discuss it.” The record further reflects that the jury resumed its deliberations after the court provided requested testimony and instruction in response to the first two notes, and then rendered a verdict of guilty. The third note, which is included in the record, indicates that the jury was seeking the testimony of a particular witness on a specific topic, but there is nothing in the record indicating that the note was shown to counsel, or that it was read into the record before the jury rendered its verdict. Where, as here, “the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . [,] preservation is not required” … , and we conclude that the “[c]ourt committed reversible error by violating the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note before accepting a verdict” … . People v Brink, 2015 NY Slip Op 09450, 4th Dept 12-23-15

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF JURY NOTE CONTENTS REQUIRED REVERSAL)/JURY NOTE (FAILURE TO APPRISE COUNSEL OF CONTENTS REQUIRED REVERSAL)/ORAMA ERROR (FAILURE TO APPRISE COUNSEL OF CONTENTS OF JURY NOTE REQUIRED REVERSAL IN THE ABSENCE OF PRESERVATION)

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SEARCH OF JACKET POCKET NOT PRECEDED BY PAT DOWN SEARCH; SEIZURE OF WEAPON FROM JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE.

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress evidence taken during a search of his jacket should have been granted. The searching officer had the right to pat the defendant down for weapons but did not do so. The search of the pockets, which turned up a weapon, was not, therefore, supported by probable cause:

The search of the defendant’s right jacket pocket, from which the police recovered a gun, cannot be upheld as justifiably premised on probable cause, since the defendant had not been placed under arrest prior to the search … . “[A]n officer who reasonably suspects that a detainee is armed may conduct a frisk or take other protective measures even in the absence of probable cause to arrest” … . However, “[a] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry” … . “The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances” … .

Here, the police officer searched the defendant’s jacket pocket without any prior visual observations of a weapon and without first conducting a pat down of the outside of the pocket. Thus, even assuming that the officer acted on reasonable suspicion that criminal activity was afoot and an articulable basis to fear for his safety, he failed to confine the scope of his search to an intrusion reasonably necessary to protect himself from harm. Accordingly, the weapon recovered as a result of the unlawful search should have been suppressed. In addition, the drugs and other items thereafter recovered must also be suppressed as fruits of the initial, unlawful search … . People v Graham, 2015 NY Slip Op 09442, 2nd Dept 12-23-15

CRIMINAL LAW (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/EVIDENCE (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/SUPPRESSION (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)/SEARCH AND SEIZURE (SEARCH OF JACKET POCKET NOT SUPPORTED BY PROBABLE CAUSE)

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SEARCH OF DEFENDANT’S JACKET, WHICH WAS NOT ON HIS PERSON, AFTER DEFENDANT WAS HANDCUFFED AND IN CUSTODY VIOLATED THE STATE CONSTITUTION.

The Fourth Department determined the search of the pockets of defendant’s jacket (which was not on his person) after defendant was handcuffed and in custody was illegal under the State Constitution and the drugs found in the pockets should have been suppressed. The court further found that the illegally-seized drugs presented as evidence at trial may have influenced the jury to find an “intent to sell” with respect to the remaining drug count. A new trial was ordered on the remaining count:

After securing the jacket, the officers replaced the handcuffs on defendant and escorted him to the rear seat of their patrol car. One of the officers placed the jacket on the floor of the front seat of the patrol car, where it remained while defendant was transported to the Public Safety Building. Defendant was taken to an interview room, and the jacket was searched in another room at the Public Safety Building. A variety of drugs was discovered in the jacket pockets. * * *

“Under the State Constitution, to justify a warrantless search incident to an arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest . . . The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . We conclude that, here, neither requirement is satisfied. At the time the jacket was searched, defendant was handcuffed in an interview room at the Public Safety Building. “[T]he jacket had been reduced to the exclusive control of the police[,] and there was no reasonable possibility that defendant could have reached it” … . Nor was there any exigency that would justify the warrantless search of the jacket in these circumstances … . People v Wilcox, 2015 NY Slip Op 09457, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/EVIDENCE (SEARCH OF DEFENDANT’S JACKET VIOLATED THE STATE CONSTITUTION)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/SUPPRESSION (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)

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EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED; JUDGE FAILED TO ELICIT UNEQUIVOCAL ASSURANCES OF IMPARTIALITY FROM FIVE PROSPECTIVE JURORS; NOTHING CAN BE INFERRED FROM THE PROSPECTIVE JURORS’ COLLECTIVE SILENCE IN RESPONSE TO THE JUDGE’S QUESTION WHETHER THEY COULD BE FAIR.

The Fourth Department ordered a new trial after finding that defendant’s motion to suppress statements and evidence should have been granted. The police entered defendant’s apartment without permission. The People argued that the entry was proper under the so-called emergency exception to the warrant requirement. However, the facts indicated the police entered the apartment solely because of defendant’s refusal to open the door. The Fourth Department further noted that five prospective jurors should have been excused for cause because they all indicated not hearing from the defendant would be problematic for them. The judge explained that the defendant had no responsibility to put on any proof, but failed to elicit an unequivocal assurance from each of the jurors that they could render an impartial verdict. The judge simply asked all the jurors collectively whether they had a problem sitting as fair and impartial jurors and the jurors remained silent:

… [B]ased on our review of the record, we conclude that “the evidence at the suppression hearing [did] not establish that the police had reasonable grounds to believe that there [was] an emergency at hand and an immediate need for their assistance for the protection of life or property’ ” … . Indeed, the People did not present any evidence that the police observed anything unusual once they arrived at defendant’s apartment. Although the record indicates that defendant and the victim may have been previously involved in domestic disputes, both police officers testified at the suppression hearing that they did not have direct, personal knowledge of any previous domestic violence or any indication that defendant and the victim were engaged in a domestic dispute at the time they arrived at the apartment. The police officers testified only that they knew that defendant was inside the apartment but would not answer the door. In our view, such testimony is insufficient to support a determination that the “emergency exception” applied to justify the warrantless entry.

… Here, the record establishes that five out of the six prospective jurors clearly expressed concerns that not hearing from defendant or someone on behalf of defendant would affect, inter alia, their ability to be fair and impartial. In response, the court instructed the jury panel that defendant has no responsibility to put on any proof, that he may or may not call witnesses, that he may or may not take the witness stand, and that it is the prosecution’s burden to prove the elements of the crimes of which defendant is accused. The court then asked the jury panel whether anyone had “a problem sitting as a fair and impartial juror in this case?” The five prospective jurors at issue remained silent.

In our view, the statements of the five prospective jurors cast serious doubt on their ability to render an impartial verdict … . The court erred in not obtaining thereafter an “unequivocal assurance . . . from each of those potential jurors” to the effect that he or she could render an impartial verdict … . Furthermore, “we can infer nothing from the [collective] silence of the challenged jurors” … . People v Casillas, 2015 NY Slip Op 09454, 4th Dept 12-23-15

CRIMINAL LAW (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED)/EVIDENCE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (MISAPPLIED)/SUPPRESSION (EMERGENCEY EXCEPTION TO WARRANT REQUIREMENT MISAPPLIED)/CRIMINAL LAW (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)/JURIES (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)

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SEARCH INSIDE DEFENDANT’S UNDERWEAR WAS AN ILLEGAL STRIP SEARCH.

The Fourth Department, reversing County Court, determined what amounted to a strip search at a traffic stop was illegal. The officer searched defendant’s underwear and seized drugs which were inside defendant’s underwear:

… [B]ecause the officer intended to transport defendant to the police station to charge him with the traffic infractions, he was justified in conducting a pat search for weapons before placing defendant in the patrol vehicle … . We note that a person’s underwear, “unlike a waistband or even a jacket pocket, is not a common sanctuary for weapons’ ” …  and, in any event, the officer did not pat the outside of defendant’s clothing to determine whether defendant had secreted a weapon in his underwear after defendant leaned forward. Instead, he conducted a strip search by engaging in a visual inspection of the private area of defendant’s body … . …  We conclude that a visual inspection of the private area of defendant’s body on a city street was not based upon reasonable suspicion that defendant was concealing a weapon or evidence underneath his clothing… . People v Smith, 2015 NY Slip Op 09517, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/EVIDENCE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SUPPRESSION (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)

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IN THIS VISITATION-MODIFICATION PROCEEDING, DAUGHTER’S OUT-OF-COURT STATEMENTS WERE NOT SUFFICIENTLY CORROBORATED.

The Fourth Department determined Family Court, in a visitation-modification proceeding, properly found that the daughter’s out-of-court statements about alleged sex abuse were not reliably corroborated:

“It is well settled that there is an exception to the hearsay rule in custody [and visitation] cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046 (a) (vi)’ . . . , where . . . the statements are corroborated” … . “Although the degree of corroboration [required] is low, a threshold of reliability’ must be met” … . “The repetition of an accusation does not corroborate a child’s prior statement’ . . . , although the reliability threshold may be satisfied by the testimony of an expert” … . “Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated . . . , and its findings must be accorded deference on appeal where . . . the . . . [c]ourt is primarily confronted with issues of credibility” … .

Here, there is no direct or physical evidence of abuse, and thus “the case turns almost entirely on issues of credibility” … . Although the mother correctly notes that some corroboration may be provided through the consistency of a child’s statements and that a child’s out-of-court statements may be corroborated by testimony regarding the child’s increased sexualized behavior … , the court determined here that the mother’s witnesses—who provided the corroborative testimony regarding the daughter’s purportedly consistent statements and sexualized behavior—were not credible. Matter of East v Giles, 2015 NY Slip Op 09466, 4th Dept 12-23-15

FAMILY LAW (CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/EVIDENCE (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/HEARSAY (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)

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STUDENT ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE.

The Second Department, reversing Supreme Court, determined plaintiff, a high school varsity lacrosse player, assumed the risk of injury during lacrosse practice. Plaintiff alleged the goal was not properly covered by the net and his foot hit the base of the goal, causing him to twist his ankle and fall:

The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . This includes the construction of the playing surface and any open and obvious condition on it … . * * *

… Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. The defendant established, prima facie, that the plaintiff assumed the risk by voluntarily participating in lacrosse practice where the condition of the goal was not concealed and clearly visible … . Safon v Bellmore-Merrick Cent. High Sch. Dist., 2015 NY Slip Op 09418, 2nd Dept 12-23-15

NEGLIGENCE (STUDENT ATHLETE ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE)/EDUCATION-SCHOOL LAW (STUDENT ATHLETE ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE)/ASSUMPTION OF RISK (STUDENT ATHLETE ASSUMED RISK OF INJURY DURING LACROSSE PRACTICE)

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ALTHOUGH THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF FELL, PLAINTIFFS RAISED A QUESTION OF FACT WHETHER PREEXISTING SNOW AND ICE WAS THE CAUSE OF THE FALL.

The Second Department determined the defendant met his burden of demonstrating a storm was in progress when plaintiff slipped and fell, but plaintiff then raised a question of fact whether snow and ice which was there prior to the storm was the cause of the fall:

The evidence submitted by the defendant in support of its motion for summary judgment, including certified climatological data, a report from the plaintiffs’ own expert meteorologist, and the transcripts of the deposition testimony of the parties, demonstrated, prima facie, that a storm was in progress at the time of the subject accident … . The plaintiffs do not contend otherwise.

Accordingly, the burden shifted to the plaintiffs to raise a triable issue of fact as to whether the injured plaintiff’s fall was caused by something other than precipitation from the storm in progress … . In order to do so, the plaintiffs were “required to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where the [injured] plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition” … . The plaintiffs raised a triable issue of fact in this regard. The evidence relied upon by the plaintiffs in opposition to the defendant’s motion, which included the report of their expert meteorologist, certified climatological data, and the affidavits of the injured plaintiff and two nonparty witnesses, raised a triable issue of fact as to whether the injured plaintiff slipped and fell on old snow and ice that was the product of a prior storm, as opposed to precipitation from the storm in progress, and as to whether the defendant had constructive notice of the preexisting condition… . Burniston v Ranric Enters. Corp., 2015 NY Slip Op 09395, 2nd Dept 12-23-15

NEGLIGENCE (DESPITE STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER PREEXISTING ICE AND SNOW WAS THE CAUSE OF THE FALL)/SLIP AND FALL (DESPITE STORM IN PROGRESS, QUESTION OF FACT RAISED WHETHER PREEXISTING ICE AND SNOW WAS THE CAUSE OF THE FALL)/STORM IN PROGRESS (QUESTION OF FACT WHETHER PREEXISTING ICE AND SNOW WAS CAUSE OF FALL)

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