You are here: / Criteria for Liability for Lead Paint Exposure Described

Search Results

/ , ,

Criteria for Liability for Lead Paint Exposure Described

Reversing Supreme Court, the Second Department determined defendants in a lead paint case failed to demonstrate they did not have notice of the dangerous condition.  The court explained the relevant criteria:

Under New York common law, a landowner “has a duty to maintain his or her premises in a reasonably safe condition” … . “[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” … . Constructive notice of a hazardous lead-based paint condition may be established by proof “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children, and (5) knew that a young child lived in the apartment” … . Greene v Mullen, 2015 NY Slip Op 02729, 2nd Dept 4-1-15

 

/

Sentencing Court Must Place on the Record Its Reasons for Denying Youthful Offender Status

The Second Department noted that the sentencing court must always place on the record its reasons for denying youthful offender status to an eligible youth:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … .

Here, the Supreme Court failed to adequately place on the record its reasons for denying the defendant youthful offender status. Under these circumstances, we vacate the defendant’s sentence, and remit the matter to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment. People v Stevens, 2015 NY Slip Op 02794, 2nd Dept 4-1-15

 

/ ,

Emergency Power to Demolish a Building Properly Exercised

The Second Department determined the city properly exercised its emergency power to demolish plaintiff’s building due to exigent circumstances:

“A municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, contrary to the defendant’s contention, there exists a valid line of reasoning and permissible inferences by which the jury could have rationally concluded that the defendant’s determination that immediate demolition of the building was required in order to protect the public from imminent danger was arbitrary … . Rapps v City of New York, 2015 NY Slip Op 02743, 2nd Dept 4-1-15

 

/

Court’s Failure to Share Entire Contents of Note from Jury Constituted a Mode of Proceedings Error Requiring Reversal

The Second Department determined the trial court’s failure to share the entire contents of a note from the jury was a mode of proceedings error requiring reversal:

CPL 310.30 requires that trial courts give notice to the People and the defense before responding to a note from a deliberating jury … . A court’s ” core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request—in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'” … . Meaningful notice means notice of the “actual specific content of the jurors’ request” …, and “a court must read a jury note verbatim’ so that the parties have the opportunity to accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response'” … .

“Although not every violation of CPL 310.30 is immune from normal preservation principles, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error,” which does not require preservation … .

Here, the trial court’s failure to share the entire contents of a substantive note from the jury constituted a mode of proceedings error requiring reversal … . People v Cotton, 2015 NY Slip Op 02780, 2nd Dept 4-1-15

 

/ ,

Questions of Fact Re: Whether Municipality Created the Dangerous Condition Thereby Negating the Written-Notice Requirement

The Second Department determined questions of fact existed whether the village created the dangerous sidewalk condition, thereby eliminating the written-notice prerequisite to a lawsuit:

A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies … . Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … .

Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition … . The Village failed to do so. Monaco v Hodosky, 2015 NY Slip Op 02735, 2nd Dept 4-1-15

 

/ ,

Moratorium on Fracking Did Not Extend Oil and Gas Leases Beyond the Primary Five-Year Term

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a “force majeur” clause in oil and gas leases was not triggered by the moratorium on fracking in New York and, therefore, the five-year primary term of the leases was not extended by the moratorium:

Each of the leases contains an identical term clause, also known as a habendum clause, which establishes the primary and definite period during which the energy companies may exercise the drilling rights granted by the leases. Specifically, the leases’ habendum clause provides:

“It is agreed that this lease shall remain in force for a primary term of FIVE (5) years from the date hereof and as long thereafter as the said land is operated by Lessee in the production of oil or gas.”

Under this provision, the interests conveyed by the leases exist for a five-year “primary term,” followed by an open secondary term so long as the land is operated by the lessee in the production of oil or gas.

Each lease also contains what the parties refer to as a “force majeure clause.” Generally, a force majeure event is an event beyond the control of the parties that prevents performance under a contract and may excuse nonperformance … . The force majeure clause here provides:

“If and when drilling or other operations hereunder are delayed or interrupted by lack of water, labor or material, or by fire, storm, flood, war, rebellion, riot, strike, differences with workmen, or failure of carriers to transport or furnish facilities for transportation, or as a result of some order, rule, regulation, requisition or necessity of the government, or as a result of any other cause whatsoever beyond the control of Lessee, the time of such delay or interruption shall not be counted against Lessee, anything in this lease to the contrary notwithstanding. All express or implied covenants of this lease shall be subject to all Federal and State laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or in part, nor Lessee held liable in damages for failure to comply therewith, if compliance is prevented by, or if such failure is the result of any such Law, Order, Rule or Regulation.” * * *

…[W]e hold that the force majeure clause does not modify the primary term of the habendum clause and, therefore, does not extend the leases. The habendum clause in the leases does not incorporate the force majeure clause by reference or contain any language expressly subjecting it to other lease terms … . Moreover, the language in the force majeure clause stating that “the time of such delay or interruption shall not be counted against Lessee” does not refer to the habendum clause with specificity. Thus, the habendum clause is not expressly modified or enlarged by the force majeure clause. Beardslee v Inflection Energy, LLC, 2015 NY Slip Op 02677, CtApp 3-31-15

 

/ , ,

Defense Counsel’s Absence When Judge Decided to Replace a Sick Juror Not Preserved by Objection/Court Need Not Put on the Record Its Consideration of Alternatives to Courtroom Closure/Factual Allegations Insufficient to Justify a Suppression Hearing

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined defense counsel’s absence from the courtroom when the judge put on the record that he was replacing a sick juror was not a mode of proceedings error and was not preserved by objection. Defense counsel entered the courtroom just as the judge seated the alternate juror and did not object. The Court of Appeals also determined the trial judge was not required to put on the record his consideration of measures other than the closure of the courtroom when undercover officers testified, and sufficient facts were not raised in the defense motion papers to justify a suppression hearing:

Here, although defense counsel was not present in court while the judge was stating on the record that he intended to replace the sick juror and counsel for co-defendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on-the-record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. * * *

… [T]his Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest”… . * * *

… [D]efendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a [suppression] hearing. It was defendant’s role in the conspiracy … and his conduct … at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing. People v Garay, 2015 NY Slip Op 02672, CtApp 3-31-15

 

/

Non-Resident Attorneys Must Maintain a Physical Office in New York State to Practice in New York

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the requirement that, in order to practice in New York, non-resident attorneys maintain a physical office in New York State is constitutional:

Here, the statute appears to presuppose a residency requirement for the practice of law in New York State. It then makes an exception, by allowing nonresident attorneys to practice law if they keep an “office for the transaction of law business” in this State. By its plain terms, then, the statute requires nonresident attorneys practicing in New York to maintain a physical law office here. Schoenefeld v State of New York, 2015 NY Slip Op 02674, CtApp 3-31-15

 

/ ,

Line Between Inadmissible Testimonial (Hearsay) Statements and Admissible Non-Testimonial Information Clarified

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion, determined the defendant’s right to confrontation was violated in one case and not violated in another. (Ostensibly) the hearsay was not admitted for the truth of the matters asserted, but rather to explain police actions.  In one case, the hearsay was deemed testimonial (and inadmissible) because it was substantive enough to have effectively replaced the declarant’s testimony.  In the other case, the information was not deemed testimonial, because any connection with the information and an out-of-court declarant was speculative . The relevant law was described as follows:

…[T]he federal Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial,” unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her (Crawford v Washington, 541 US 36, 53-54 [2004]…). “[A] statement will be treated as testimonial only if it was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony’ ” … and, “[i]f a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence” … . Our precedent teaches that “two factors . . . are ‘especially important’ in resolving whether to designate a statement as testimonial—-‘first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing’ ” … . “[T]he ‘purpose of making or generating the statement, and the declarant’s motive for doing so,’ also ‘inform [those] two interrelated touchstones’ ” … .

But this is not to say that testimonial statements are invariably intolerable at trial. The federal Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” … . Moreover, subject to the exercise of a court’s discretion, otherwise inadmissible evidence that “provide[s] background information as to how and why the police pursued and confronted [a] defendant” … may be admitted to help a jury understand a case in context “if the evidence’s probative value in explaining the [pursuit] outweighs any undue prejudice to the defendant,” and if the evidence is accompanied by a ” proper limiting instruction[]’ “… . People v Garcia, 2015 NY Slip Op 02675, CtApp 3-31-15

 

/ ,

Introduction of “Prompt Outcry” Evidence in a Rape Trial, After the People, Pre-Trial, Had Informed Defense Counsel and the Court There Would Be No Evidence of a “Prompt Outcry,” Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversed defendant’s conviction in a rape case because the People, prior to trial, indicated there would be no “prompt outcry” evidence and, at trial, “prompt outcry” evidence was introduced.  Because defense counsel had formulated trial strategy and conducted voir dire with the understanding the first time the victim told anyone about the alleged offense was six months after the incident, the prejudice resulting from the “surprise” evidence was substantial:

Based on this record, the trial court abused its discretion when it denied defense counsel’s motion for a mistrial or to strike a portion of complainant’s testimony. Undisputedly, complainant’s testimony that she told her friend “what happened” conveyed to the jury that she had engaged in sexual intercourse with defendant that evening. Although this testimony was relevant, we have observed that relevancy, alone, does not render evidence admissible because “‘it may be rejected if its probative value is outweighed by the danger that its admission would . . . unfairly surprise a party[] or create substantial danger of undue prejudice to one of the parties'” … .

Relying on the People’s pre-trial representation, defense counsel shaped his trial strategy — from voir dire to his opening statement — based on his founded belief that complainant did not disclose the alleged rapes until months after they occurred. Complainant’s testimony that she disclosed her accusations against defendant — even partially — the same night as the alleged assaults, took defendant by surprise because it was inconsistent with the People’s earlier position and with complainant’s grand jury testimony. Despite the People’s admission that they “expected” complainant to testify in such a manner, the prosecutor inexplicably failed to convey this information to defense counsel. As a result, the surprise testimony eviscerated counsel’s credibility with the jury and irreparably undermined his trial strategy. People v Shaulov, 2015 NY Slip Op 02676, CtApp 3-31-15

 

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy