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Defendant’s Statement Was Circumstantial Evidence of the Taking Element of Grand Larceny Because an Innocent Inference from the Statement Was Possible; Video Surveillance Was Direct Evidence of the Taking Element Despite Defendant’s “Innocent” Explanation of His Actions

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined video surveillance showing defendant first hiding and then rifling through the victim's purse was direct, not circumstantial, evidence of the taking element of grand larceny (despite the defendant's non-criminal explanation of his actions). The court also determined the defendant's statement “I don't have it, but I can get it” (made when asked about the purse) was circumstantial evidence of the taking element because an innocent explanation for having the purse could be inferred from the statement. Because both direct and circumstantial evidence of grand larceny was presented, the circumstantial-evidence jury instruction was not required:

It is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence … . By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given … .

We agree with defendant that his statement to the prosecution witness that he did not have the purse but could get it was not direct evidence of his guilt. A defendant's statement is direct evidence only “if it constitutes 'a relevant admission of guilt' ” … . * * *

Here, defendant's statement — that he did not have the purse but could get it — was not a direct admission of his guilt of larceny. Rather, defendant's statement was also consistent with an inference that although he did not steal the purse, he knew where the purse was located and thought he could obtain it. Inasmuch as his statement merely included inculpatory facts from which the jury may or may not have inferred guilt, his statement was circumstantial rather than direct evidence … .

We agree with the People, however, that the surveillance video constituted direct evidence of defendant's guilt of larceny. The “taking” element of larceny “is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights” … . People v Hardy, 2015 NY Slip Op 08369, CtApp 11-18-15


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Question of Fact Whether City Created Hazardous Condition

The Second Department, reversing Supreme Court, determined there was a question of fact whether the city created the allegedly hazardous condition (an expansion joint cover plate on a bridge which was struck by plaintiff’s bicycle):

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . In addition, “[a] municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality … .

Here, the City failed to establish, prima facie, that the subject metal expansion joint cover plate did not present a hazardous or defective condition … . Although the plaintiff does not dispute that the City did not have prior written notice of the alleged hazardous or defective condition, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition … . Oser v City of New York, 2015 NY Slip Op 08393, 2nd Dept 11-18-15

 

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Courts Have the Power to Exclude Evidence Admitted by Stipulation; Trial Judge’s Refusal to Exclude the Evidence, Under the Facts, Was Not an Abuse of Discretion

In a conspiracy prosecution arising from a scheme to defraud mortgage lenders, the Court of Appeals determined the trial judge properly refused to exclude documentary evidence, and testimony concerning the evidence, which, although inadmissible, was admitted by stipulation and was not objected to until the day after the testimony. The court noted that the trial judge, in the exercise of discretion, had the power to exclude the evidence, despite the stipulation.  But because the admitted evidence did not raise a constitutional (confrontation) issue, was not highly prejudicial, and was not the subject of a timely objection, the trial judge did not abuse his discretion in this case:

Although courts are ordinarily bound to enforce party stipulations … , where a party has in the interests of judicial economy stipulated to the admission of voluminous materials and there are among them scattered items, both prejudicial and ordinarily inadmissible that may reasonably have escaped counsel’s attention, there is no rule preventing an exercise of judicial discretion to relieve the party, at least in part, from the stipulation, particularly where doing so would not significantly prejudice the other side. The trial court here did not take a contrary view in declining to redact the record as defendant requested. It ruled as it did not because it understood the parties’ stipulation categorically to preclude relief of the sort sought, but because significant unobjected-to testimony had already been received … . While the court might have exercised its discretion differently, its decision not to revisit the issue of the notation’s admissibility, cannot under the circumstances be characterized as an abuse of discretion, as would be necessary for it to qualify as a predicate for relief in this Court … . Although the stipulation was not irreversibly binding, it was at least presumptively enforceable and defendant offered no plausible excuse for failing earlier to seek an exception from its coverage. Assuming that the disputed notation might have reasonably escaped notice before trial — and that is at best questionable — it was prominently referenced in [the related] testimony, but even then elicited no contemporaneous protest.

This moreover was not a situation in which the receipt of an extrajudicial statement resulted in a denial of the constitutional right of confrontation. The notation was not testimonial hearsay … ; at worst its admission ran counter to evidentiary rules of nonconstitutional provenance and was, in light of other evidence in the case received without even belated objection, practically redundant. Indeed, a different exercise of discretion by the trial court to exclude the note and redact record references to it, would not have materially altered the evidentiary equation. People v Gary, 2015 NY Slip Op 08368, CtApp 11-18-15

 

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Plaintiff Did Not Know Cause of Fall

The Second Department determined summary judgment was properly granted to defendant in a slip and fall case. Plaintiff apparently tripped on a rug. After the fall plaintiff noticed a part of the rug which was bent upwards. However there was no evidence thr rug was in that condition before the fall, forcing resort to speculation about the cause of the fall:

“In a slip [or trip] and fall case, a defendant moving for summary judgment has the initial burden of establishing, prima facie, that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . However, “[a] plaintiff’s inability to identify what had caused him or her to fall is fatal to his or her case, and a defendant moving for summary judgment dismissing the complaint can meet its initial burden as the movant simply by demonstrating that the plaintiff did not know what had caused him or her to fall” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting the transcript of the plaintiff’s deposition, during which she testified that she did not notice the subject rug at any time prior to her fall, and that it was only after she fell that she observed a part of the rug to be in a folded condition … . The defendant also submitted the deposition testimony and an affidavit from the employee the plaintiff was following when she fell. The employee stated that she did not see any condition with respect to the subject rug which would cause anyone to trip. The defendant also submitted surveillance footage from the day of the plaintiff’s fall depicting the rug, which does not show that the rug was in a defective condition prior to the plaintiff falling. Without proof that there was a defective condition present with respect to the subject rug when the plaintiff fell, and the possibility that the folded condition of the rug the plaintiff observed after she fell was caused by her tripping, a jury would be required to impermissibly speculate as to the cause of her fall… . Giannotti v Hudson Val. Fed. Credit Union, 2015 NY Slip Op 08383, 2nd Dept 11-18-15

 

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Evidence of Prior Violent Act by Defendant Properly Admitted to Refute “Extreme Emotional Disturbance” Affirmative Defense

The Court of Appeals, in a full-fledged opinion by Judge Stein, in a murder case, determined that evidence of a prior violent act committed by the defendant was properly admitted to rebut defendant’s “extreme emotional disturbance” defense. Defendant presented expert testimony alleging he suffered from post-traumatic stress disorder (PTSD) stemming from a stabbing attack. The defendant argued that his reaction to seeing his friend attacked, intensified by the PTSD, was the reason he fired his gun at a group of people, killing one of them. The defense argued that, prior to the stabbing which triggered the PTSD, defendant was a non-violent person. The evidence of the pre-PTSD violent act by defendant was properly admitted to call into question the “PTSD” defense. A violent incident which occurred after the charged offense, however, should not have been admitted:

Where …. evidence of a defendant’s bad acts or uncharged crimes is “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” … .

Evidence of uncharged criminal conduct or bad acts that are probative of a defendant’s state of mind may be admissible if the defendant “opens the door” to such evidence by putting in issue his state of mind at the time of the commission of the charged crime by, for example, raising an extreme emotional disturbance or insanity defense … . Nevertheless, such a defense opens the door to the People’s rebuttal evidence “only to the extent that [the proffered] evidence has a natural tendency to disprove [the defendant’s] specific claim” … . That is, evidence of uncharged crimes or bad acts is admissible to rebut an extreme emotional disturbance defense where the evidence has “some ‘logical relationship’ to, and a ‘direct bearing upon,’ the People’s effort to disprove” the defense, and the probative value of the evidence outweighs its prejudicial effect … .  Although the balancing of probative value against potential prejudice is a matter that lies within the trial court’s discretion …, “the threshold question of identifying a material issue to which the evidence is relevant poses a question of law” … .

… The crux of the defense was that defendant, a previously nonviolent person, was suffering from PTSD as a result of the 2005 stabbing incident and that his actions in firing into the group on the street were attributable to his PTSD. By raising this defense and presenting the testimony of [two witnesses] — both of whom testified regarding defendant’s personality and behavior before the 2005 stabbing as compared with his behavior after that event — defendant “necessarily put[] in issue some aspects of his character and personal history” … . The prosecutor’s inquiries pertaining to the 2002 incident were “directly relevant to the question of defendant’s reaction patterns” because it was an instance in which “defendant had resorted to violence in the face of relatively mild provocation” before the 2005 stabbing occurred … . This altercation “ha[d] a logical and natural tendency to disprove [defendant’s] specific claim” that he was an otherwise peaceful person who reacted with violence only because his PTSD was triggered by the circumstances in which the shooting took place … . In other words, it tended to refute the subjective element of defendant’s defense, i.e. that he actually acted under the influence of PTSD. Moreover, the court’s decision to allow this incident to be explored on cross-examination, rather than through the testimony of a rebuttal witness, was not improper under the facts presented here. People v Israel, 2015 NY Slip Op 08370, CtApp 11-18-15

 

 

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Six-Year Statute of Limitations for Reformation of Deed Exceeded, No Evidence the Exception to the Statute Applied

The Second Department determined the action to reform a deed (correction of alleged scrivener’s error) was time-barred. The six-year statute was exceeded and there was no proof the exception to the six-year statute applied:

A cause of action seeking reformation of an instrument on the ground of mistake, including an alleged scrivener’s error, is governed by the six-year statute of limitations pursuant to CPLR 213(6), which begins to run on the date the mistake was made … . However, “a well-recognized exception exists as to one who is in possession of real property under an instrument of title,’ whereby the statute of limitations never begins to run against his [or her] right to reform that instrument until he [or she] has notice of a claim adverse to his [or hers] under the instrument, or until his [or her] possession is otherwise disturbed'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the alleged scrivener’s error occurred on August 8, 2005, and that the plaintiff did not commence this action until February 2013, more than six years after the alleged mistake … . In opposition, the plaintiff failed to raise a question of fact as to the applicability of the exception to the statute of limitations based on his alleged “possession of real property under an instrument of title” … . The plaintiff failed to submit any evidence with respect to whether or when he was in possession of the subject property. Lopez v Lopez, 2015 NY Slip Op 08389, 2nd Dept 11-18-15

 

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Video Recording of Independent Medical Exam (IME) Should Be Disclosed Prior to Trial; Court’s Permission to Record IME Is Required; Request for Another IME by a Different Doctor Should Have Been Granted

The Second Department, in a full-fledged opinion by Justice Roman, determined: (1) a video of an independent medical exam (IME) surrepticiously made by plaintiff’s attorney should have been turned over to the defense prior to trial; (2) the court’s permission for recording an IME is required; and (3) under the unique circumstances of this case, the request for an IME by a different doctor should have been granted. The opinion is very long and fact-specific and cannot be fairly summarized here. With respect to the additional IME and the IME video, the Second Department wrote:

Pursuant to CPLR 3121(a), if a plaintiff’s physical condition is in controversy, the defendant may require the plaintiff to submit to a physical examination … . There is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, and a subsequent examination is permissible provided the party seeking the examination demonstrates the necessity for it … . Furthermore, after a note of issue has been filed, as in this case, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination … .

In the present case, unusual and unanticipated circumstances warranting a new IME abound. Foremost among them is Dr. Katz’s unavailability to the appellants as a witness at a retrial, due to his refusal to appear voluntarily, which, in turn, resulted from the Supreme Court’s repeated accusation that Dr. Katz “lied” or committed “perjury” at the first damages trial. These extraordinary circumstances were set in motion when the plaintiff’s attorney chose to surreptitiously videotape Dr. Katz’s second IME of the plaintiff, and chose to withhold that recording from defense counsel despite the requirements of CPLR 3101(i). * * *

… [T]he failure of plaintiff’s counsel to seek and obtain the Supreme Court’s permission to videotape the second IME was, by itself, a sufficient reason to prohibit the use of the recording at trial. Further compounding the improper conduct of plaintiff’s counsel in making the recording without procuring the court’s approval in advance was the failure to disclose the recording to defense counsel prior to trial, which was a clear violation of CPLR 3101. Subsection (a) of that statute provides that: “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party” (CPLR 3101[a] [emphasis added]). Subsection (i) provides, in relevant part, as follows:

“In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use” (CPLR 3101[i]). Bermejo v New York City Health & Hosps. Corp., 2015 NY Slip Op 08374, 2nd Dept 11-18-15

 

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Fraud Allegations In Connection With a Real Estate Sale Must Be Analyzed within the Doctrine of Caveat Emptor

The Second Department, reversing Supreme Court, determined plaintiffs’ complaint alleging fraudulent misrepresentation and fraudulent concealment in connection with a real estate purchase should have been dismissed. It was alleged the defendant made misrepresentations re: termite damage and mold. The court explained that allegations of fraud in a real estate transaction must be analyzed within the doctrine of caveat emptor. Here the plaintiffs were aware that the house had been treated for wood destroying insects, an inspection report had been issued, and plaintiffs had conducted their own inspection. The defendant made no representations on which plaintiffs relied and did not actively conceal the condition of the property or thwart plaintiffs’ efforts to discover damage:

“In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” …  . However, in the context of real estate transactions, a claim of fraudulent misrepresentation must be analyzed within the doctrine of caveat emptor. ” New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment'” … . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property” … . * * *

” To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor'” … . Here, the defendant showed, prima facie, that she did not thwart the plaintiffs’ efforts to discover any termite or mold damage. Indeed, the plaintiffs conducted an inspection of the property for the purpose of determining if there were wood destroying insects, and they themselves saw some evidence that the property had been treated for insect activity during their … visit, but undertook no further investigation … . The mere fact that the defendant undertook previous repair work on the house is not tantamount to concealment of a defective condition.  Hecker v Paschke, 2015 NY Slip Op 08385, 2nd Dept 11-18-15

 

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Vicious Propensities Not Demonstrated, Summary Judgment Properly Awarded to Defendants

The Second Department determined summary judgment was properly awarded to defendants in this dog bite case. Plaintiff, a postal worker, alleged the dog “flew” out of defendants’ house and attacked as she approached the house to deliver mail:

“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or a person in control of the premises where the dog was, knew or should have known of such propensities” … . Evidence tending to demonstrate a dog’s vicious propensities includes evidence of a prior attack, the dog’s tendency to growl, snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating, through their deposition testimony, that their dog was friendly and had never growled at, chased, bitten, or attacked anyone, and that they were unaware of any prior complaints about their dog’s behavior … . Specifically, the defendants testified at their depositions that their dog had lived with them and their small children for approximately five years prior to this incident, and the dog had never previously attempted to run out their front door … . The defendants also testified that they had never seen their dog act aggressively toward a mail carrier. Jackson v Georgalos, 2015 NY Slip Op 08387, 2nd Dept 11-18-15

 

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Evidence of Constructive Possession of Contraband Insufficient, Convictions Reversed

The defendant was convicted of possession of marijuana and weapons found in a bedroom of an apartment in which defendant and several others were present. The Second Department determined there was insufficient evidence that defendant constructively possessed the contraband and reversed:

The element of constructive possession may be established, inter alia, where it is shown that the defendant exercised ” dominion or control'” over the property by exercising a sufficient level of control over the place where the contraband is found or over the person from whom the contraband is seized … . “Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case” … . “Where . . . the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, the circumstances must be satisfactorily established and must be of such a character as, if true, to exclude to a moral certainty every other hypothesis except that of the accused’s guilt” … .

Viewing the evidence in the light most favorable to the People …, it was legally insufficient to establish the possession elements of the weapons possession and marijuana possession counts, as charged here. Although the defendant was present in the apartment when the search warrant was executed, “it is settled that one’s mere presence in an apartment or house where contraband is found does not constitute sufficient basis for a finding of constructive possession” … . There was no evidence specifically connecting the defendant to the bedroom where the contraband was found, or otherwise connecting the defendant to the contraband. Under these specific circumstances, the People failed to prove that the defendant exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged … . People v Brown, 2015 NY Slip Op 08428. 2nd Dept 11-18-15

 

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