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Hearing Required to Determine Whether Defense Counsel’s Failure to Take Appropriate Steps to Have a Federal Prisoner Testify for the Defense Constituted Ineffective Assistance

The Fourth Department determined a hearing was necessary to address defendant’s motion to vacate his conviction.  The motion papers raised the issue of whether defense counsel’s failure to take adequate steps to ensure a federal prisoner would be available to testify on behalf of the defense constituted ineffective assistance.  Defense counsel submitted an affidavit stating he believed the prisoner’s testimony would have been helpful to the defendant and his failure to have the prisoner appear was not part of a defense strategy. The court also directed that the hearing look into the credibility of the co-defendant who, in his plea colloquy, stated that he acted alone.  People v Becoats, 2014 NY Slip Op 03088, 4th Dept 5-2-14

 

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Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense Which Was In the Indictment, or Any Lesser Included Offense

The Fourth Department determined the failure of the superior court information (SCI) to include the offenses in the indictment, or any lesser included offenses, required reversal of the defendant’s conviction:

The two counts charged in the SCI were not offenses for which defendant was held for action of a grand jury (see CPL 195.20), i.e., those two counts were not included in the felony complaint, and they were not lesser included offenses of an offense charged in the felony complaint … . “[T]he primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained therein” (CPL 180.10 [1]). Thus, ” the waiver procedure is triggered by the defendant being held for [g]rand [j]ury action on charges contained in a felony complaint . . . and it is in reference to those charges that its availability must be measured’ ” … . Inasmuch as the SCI to which defendant pleaded guilty did not “include at least one offense that was contained in the felony complaint,” it was jurisdictionally defective … . That defect does not require preservation, and it survives defendant’s waiver of the right to appeal and his guilty plea … . People v Tun Aung, 2014 NY Slip Op 03135, 4th Dept 5-2-14

 

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Competency of Evidence Before Grand Jury Not Reviewable On Appeal Where Defendant Convicted Upon Legally Sufficient Trial Evidence

In response the defendant’s claim that a child witness was allowed to testify before the grand jury without determining her testimonial capacity, the Fourth Department noted that the competency of evidence before the grand jury is not reviewable on appeal where defendant was convicted upon legally sufficient trial evidence. People v Riley, 2014 NY Slip Op 03140, 4th Dept 5-2-14

 

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Consequential Damages Related to a Parcel of Land Sold Prior to the Taking Should Not Have Been Granted by the Court of Claims

The Fourth Department, in a full-fledged opinion by Justice Fahey, determined the Court of Claims should not have awarded consequential damages for a parcel of land which was sold prior to the taking.  As the court described the issue:

Here we address the issue whether consequential damages may be awarded when the real property in question was sold months before the taking of other real property that affects the land in question. Claimants commenced this proceeding seeking damages for the diminished value of approximately 16 acres of what claimants characterized as “remaining land” following defendant’s taking of approximately 1.22 acres of land from what was claimants’ 17.3-acre parcel. Following a trial, the Court of Claims awarded claimants consequential damages with respect to what the court concluded was 12.835 acres of that parcel. Included in the 12.835 acres of land for which the court awarded consequential damages were 4.63 acres of land sold by claimants to Progressive Casualty Insurance Company (Progressive Parcel) for $1,800,000. That sale occurred in November 2005, i.e., before the taking of the aforementioned 1.22 acres of land in July 2006. Defendant now contends that the award of consequential damages was excessive inasmuch as the court erroneously awarded consequential damages for the Progressive Parcel. We agree. Rose Park Place Inc v State of New York, 2014 NY Slip Op 03070, 4th Dept 5-2-14

 

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Professional Reliability Exception to the Hearsay Rule (Re: Experts) Explained/Appropriate Date to Commence Prejudgment Interest in Breach of Contract Action Explained

The Fourth Department explained when an expert can rely on hearsay and when prejudgment interest should commence in a breach of contract action:

We reject defendant’s further contention that there was no evidentiary foundation for the testimony of plaintiffs’ damages expert, a construction cost estimator. It is well settled that” [o]pinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is also well settled, however, that an expert is permitted to offer opinion testimony based on facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ ” … . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ ” … . Here, the expert’s damages testimony was based, in part, on measurements contained in a report that was not admitted in evidence, but those measurements were not otherwise disputed or challenged by defendant. Moreover, the expert testified that the information on which he relied was of the type relied on in his profession.

We agree with defendant, however, that the court erred in awarding prejudgment interest from April 18, 1990. The jury did not specify a date on which plaintiffs’ cause of action for breach of contract accrued and where, as here, “the precise date from which to fix interest is ambiguous, the date of commencement of the . . . action’ is an appropriate date to choose” … . We therefore modify the judgment by vacating the amount of prejudgment interest awarded from April 18, 1990 and providing that prejudgment interest is to commence from April 18, 1996, the date on which the action was commenced, to May 2, 2012, the date of the judgment. Caleb v Stevenson Envtl Servs Inc, 2014 NY Slip Op 03057, 4th Dept 5-2-14

 

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Evidence of Headaches Did Not Raise an Issue of Fact Re: “Serious Injury”

The Fourth Department, over a substantial dissent, determined that the evidence of plaintiff’s headaches did not raise a question of fact about whether the headaches constituted “serious injury” within the meaning of Insurance Law 5102 (d):

…[W]e agree with defendant that the court erred in concluding that plaintiff raised an issue of fact based upon her complaints of headaches. Although plaintiff submitted excerpts from her deposition in which she testified that “basically every day I would have some type of headache,” it is well settled that “subjective complaints of pain or headaches are insufficient to establish serious injury’ ” … . Here, the record contains no objective basis for plaintiff’s headache complaints … . Moreover, plaintiff “offered no proof that [her] headaches in any way incapacitated [her] or interfered with [her] ability to work or engage in activities at home” … . Downie v McDonough, 2014 NY Slip Op 03048, 4th Dept 5-2-14

 

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Failure to Instruct the Jury on the Sole Proximate Cause Defense Required Reversal of Plaintiff’s Verdict

The Fourth Department, over a dissent, reversed the judgment for the plaintiff and ordered a new trial finding that the trial judge should have instructed the jury on the sole proximate cause defense.  The plaintiff used a wobbly ladder while painting and fell. The trial judge felt that the sole proximate cause defense (i.e., that the plaintiff’s acts or omissions were the sole proximate cause of the accident) would have been triggered only if the plaintiff ignored an instruction to use a different ladder. The Fourth Department explained that the defense could also be triggered if the plaintiff knew he had other options available but chose to use the wobbly ladder:

…[T]he court held that plaintiff’s choice of ladder could not be the sole proximate cause of his injuries unless he had been told to use another safety device and had ignored that directive. That was an incorrect statement of the law inasmuch as it is not necessary that a plaintiff be told to use another safety device. Rather, there will be no liability imposed on a defendant if the defendant establishes that the plaintiff knew he should use another safety device and knew that such was available at the job site, but chose not to use it … . * * *

As the Court of Appeals held …, in order for there to be liability under section 240 (1), “the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them” … . Piotrowski v McGuire Manor Inc, 2014 NY Slip Op 03045, 4th Dept 5-2-14

 

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Fall from Flatbed Truck Was Covered by Labor Law 240 (1)—Fall Caused by Gravity Acting On Plywood Being Hoisted from the Truck

The Fourth Department determined plaintiff was entitled to partial summary judgment on his Labor Law 240 (1) claim.  Plaintiff fell from a flatbed truck while trying to steady plywood which became unsteady while being hoisted:

Although flatbed trucks “d[o] not present the kind of elevation-related risk that the statute contemplates” (Toefer v Long Is. R.R., 4 NY3d 399, 408), the accident in this case was caused by a falling object, which distinguishes this case from Toefer … . The accident that caused plaintiff’s injuries “flow[ed] directly from the application of the force of gravity to the object” … . In other words, the injuries were the result of “the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential” … . Inasmuch as plaintiff established that the plywood fell while being hoisted because of the absence or inadequacy of a safety device of the kind enumerated in the statute, we conclude that he is entitled to summary judgment on the section 240 (1) claim … . Hyatt v Young, 2014 NY Slip Op 03056, 4th Dept 5-2-14

 

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Question of Fact Whether Defendants Assumed a Duty of Reasonable Care When Escorting Elderly Plaintiff to His Car at Night

The Third Department determined a question of fact had been raised about whether defendants assumed a duty of reasonable care when escorting the elderly plaintiff to his car at night.  Plaintiff tripped and fell while being escorted by a hospital security guard after plaintiff had been treated at the hospital.  Plaintiff asked for the escort:

Plaintiffs did …raise a factual issue as to whether defendants assumed a duty of reasonable care regarding the escort provided. Under the assumed duty theory, “the question is whether defendant[s’] conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant[s] done nothing” … . While there was conflicting proof, on this cross motion by defendants for summary judgment we “must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof” … . Plaintiff characterized the lighting conditions when he was ready to leave the emergency room as “pitch black,” prompting him to ask for assistance. The security guard who was summoned had previously escorted people from the emergency room to off-premises parking and thus was familiar with conditions in the area. Plaintiff kept a hand on his wife’s shoulder as they walked assisting his stability. Although the security guard had a flashlight, he did not turn it on and did not walk next to plaintiffs. Plaintiff recalled that, just before he fell, he stated to the security guard that he could barely see because of the darkness, but the guard made a gesture ostensibly indicating that it was safe to proceed and, as plaintiff did so, he immediately stepped into the crack or depression and fell. Accepting such proof and the reasonable inferences therefrom, a jury could conclude that plaintiff would have proceeded more cautiously had he not relied on an individual familiar with the area who apparently gestured for him to continue despite the poor visibility … . Giglio v Saratoga Care Inc, 2014 NY Slip Op 02994, 3rd Dept 5-1-14

 

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Double Jeopardy Does Not Bar Prosecution of a Lesser Included Offense Never Considered by the Trier of Fact in the First Trial

The Fourth Department noted that an Article 78/prohibition action is a proper vehicle for raising double jeopardy as a bar to a prosecution. Defendant was charged with two counts of Driving While Intoxicated (DWI) and one count of Driving While Ability Impaired (DWAI).  In a bench trial, defendant was acquitted of one count of DWI and the second count of DWI, of which defendant was initially convicted, was subsequently dismissed pursuant to a post-trial motion because of the legal insufficiency of the evidence.  Under these circumstances, because the DWAI count was never considered in the bench trial, a second trial on that charge alone does not violate the double jeopardy prohibition:

“[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his [or her] decision based upon appropriate legal criteria” … . Here, the court, upon acquitting defendant of common-law DWI, would have applied the “acquit-first” rule …, and next considered DWI, per se, before reaching DWAI as a lesser included offense under either count of DWI … . Inasmuch as the court convicted defendant of the count charging DWI, per se, it could not have reached the lesser included offense of DWAI. Consequently, we conclude that “double jeopardy concerns . . . are not present in the case at hand . . . [because] the People here d[o] not seek to retry defendant on the count[, i.e., DWI, per se, or common-law DWI] of which he was acquitted at the first trial. Rather, the only count at issue in the retrial [will be] the lesser [DWAI] charge for which the [court did not] reach a verdict. At no point during the retrial [will] defendant [be] in jeopardy of conviction of the greater offense. Thus, there [i]s no constitutional double jeopardy bar to [a] second trial” on the lesser included offense of DWAI … . Matter of Case v Sedita, 2015 NY Slip Op 03630, 4th Dept 5-1-15

 

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