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Defendant’s Counsel Took a Position Adverse to Defendant’s Motion to Vacate His Guilty Plea—Court Should Have Appointed New Counsel Before Hearing the Motion

The Second Department determined defendant should be appointed new counsel because his original counsel took a position adverse to the defendant’s motion to withdraw his guilty plea:

Prior to the imposition of sentence upon the defendant’s conviction of criminal possession of a controlled substance in the seventh degree, the defendant moved to withdraw his plea of guilty to that charge on the ground that his plea was not knowingly, intelligently, and voluntarily made. At sentencing, assigned counsel stated that the defendant’s plea was validly entered, and denied certain factual allegations raised by the defendant.

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to his … . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the motion … . People v Armstead,2015 NY Slip Op 01956, 2nd Dept 3-11-15

 

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Question of Fact Whether Plaintiff’s Negligence Was Sole Proximate Cause of Injuries in Labor Law 240(1) Action

The Second Department determined there were questions of fact precluding both plaintiffs’ and defendant’s motions for summary judgment in a Labor Law 240(1) action.  Although the ladder which tipped over was not defective and was appropriate to the task, there were questions whether the ladder was mispositioned and, if so, who mispositioned it.  The fact that plaintiff may have been negligent did not preclude recovery under Labor Law 240(1) as long a plaintiff’s negligence was not the sole proximate cause of his injury:

In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff must prove that the statute was violated and that the violation was a proximate cause of the injuries … . Proof that the plaintiff’s own negligence was also a proximate cause will not defeat the claim … . When the evidence establishes, however, that the plaintiff’s own negligence was the sole proximate cause of the injuries, the defendant may not be held liable for those injuries … . The parties’ submissions demonstrated that the ladder itself was not defective and was appropriate to [plaintiff’s] task.

There are triable issues of fact … as to whether the ladder was mispositioned and, if so, who mispositioned it, and, if it was mispositioned by [plaintiff], whether his conduct was the sole proximate cause of the ladder’s tipping over … . Daley v 250 Park Ave., LLC. 2015 NY Slip Op 01917, 2nd Dept 3-11-15

 

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Police Were Not Justified In Entering the Curtilage of Defendant’s Home (By Climbing a Fence) After Defendant Ignored the Officers’ Command to “Stop”

The Second Department determined evidence seized after officers climbed a fence to gain access to defendant’s property was properly suppressed. The officers had enough information to approach the defendant, who was in his yard, to request information, but did not have sufficient information to justify entering defendant’s property after defendant dropped a bag and went into his house, ignoring the officers’ request to stop:

The curtilage of the home, defined as the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The Supreme Court properly determined that the defendant’s driveway and front yard, which were completely fenced-in and located in close proximity to his home, were within the curtilage of his home. The defendant manifested his expectation of privacy and that expectation is one that society recognizes as reasonable … . Further, while the officers had an objective, credible reason to approach the defendant to request information … , the defendant’s conduct of dropping the bag, which produced “a heavy thud or a clank,” and ignoring the officer’s request to stop did not escalate the encounter to justify pursuit … . People v Morris, 2015 NY Slip Op 01967, 2nd Dept 3-11-15

 

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3/4 Inch Depression Obscured by Puddle of Water Not Trivial As a Matter of Law

The Second Department determined Supreme Court should not have granted summary judgment to the defendant in a slip and fall case.  Plaintiff fell when she stepped in a depression which was filled with water.  Defendant argued the 3/4 inch depression was trivial and Supreme Court agreed.  The Second Department explained the “trivial defect” analytical criteria and noted that plaintiff had alleged the area was poorly lit:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” …, and “a mechanistic disposition of a case based exclusively on the dimension of the . . . defect is unacceptable” … . To determine whether a defect is trivial as a matter of law, a court must examine “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . Tesoriero v Brinckerhoff Park, LLC, 2015 NY Slip Op 01938, 2nd Dept 115 3-11-2015

 

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Complaint Should Not Have Been Dismissed Solely Upon the Determination an Arbitration Clause Was Valid and Applicable

The Second Department determined Supreme Court should not have dismissed an action bases solely on the fact the contract between the parties had an arbitration clause.  Dismissal pursuant to CPLR 3211(a)(1) lies only if there has been arbitration and award:

In its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, the defendant … contended that an arbitration clause contained in its contract with the plaintiff was valid and applicable, and, therefore, required dismissal of the complaint insofar as asserted against it. However, “[i]n the absence of arbitration and an award, CPLR 3211 furnishes no basis for a dismissal because of the presence in the contract of an arbitration provision” … . Accordingly, the Supreme Court erred in granting the motion of the defendant New Clients, Inc., pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it based solely upon its determination that the arbitration clause was valid and applicable. Hui v New Clients, Inc., 2015 NY Slip Op 01924, 2nd Dept 3-11-15

 

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Rebuttal Evidence Re: a Defense that Was Not Asserted Should Not Have Been Allowed (Harmless Error)/Partial Closure of Courtroom During Testimony of Undercover Officers Proper

The First Department, over a dissent, determined that, although Supreme Court erred when it allowed the prosecution to reopen its case to present rebuttal evidence, the error was harmless in this bench trial. Defense counsel had mentioned an agency defense to the drug-sale charge, but then explained that the only defense raised at trial was defendant’s complete noninvolvement. Under those circumstances evidence rebutting the agency defense, which was never asserted, should not have been allowed. The First Department also held that Supreme Court properly closed the courtroom during the testimony of undercover officers.  With regard to the partial closure of the courtroom, the First Department wrote:

The Hinton hearing court, which closed the courtroom for the testimony of two undercover officers and which offered to permit family members or other persons designated by defendant to enter, properly exercised its discretion in rejecting defense counsel’s proposal that a court officer screen members of the general public who sought to enter during the testimony. The court concluded that this suggestion would have been impracticable because there was no additional court officer available to be posted outside the courtroom, and because in any event the officer would frequently have to interrupt the testimony to report the presence of persons seeking to enter. Therefore, under the circumstances presented, defendant’s proposal was not a “reasonable alternative[] to closing the proceeding” … . People v Mallard, 2015 NY Slip Op 01882, 1st Dept 3-10-15

 

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Mandamus to Compel Proceedings Properly Sought to Compel the NYC Housing Authority to Consider Requests for Increases in “Section 8” Rent Subsidies (A Ministerial Act), But a Particular Result Could Not Be Compelled (Because Exercise of Discretion Involved)

The First Department, in a full-fledged opinion by Justice Richter, determined that Article78/mandamus-to-compel proceedings were properly brought by owners of rental-properties against the NYC Housing Authority seeking rulings re: increased and suspended “Section 8” rent subsidies. The court held that the property-owners could compel the NYCHA to consider its requests (a ministerial act), but could not compel any specific result (an exercise of discretion).  The action was deemed timely because the NYCHA had never denied the requests, therefore the four-month statute never started running.  With respect increased subsidies, the court wrote:

An article 78 mandamus proceeding may be brought to compel an agency “to perform a duty enjoined upon it by law” (CPLR 7803[1]). It is well-settled that a mandamus to compel “applies only to acts that are ministerial in nature and not those that involve the exercise of discretion” … . Thus, “the petitioner must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief” … .

Supreme Court properly found that the determination of the amount of any increase in the Section 8 subsidy is not purely ministerial but a matter entrusted to NYCHA’s discretion. An owner cannot receive a rent increase unless NYCHA first determines the reasonable rent (24 CFR 982.507[a][2][i]). In doing so, NYCHA is required to compare the unit’s rent to comparable unassisted units and must consider a myriad of discretionary factors, including location, quality, size, type and age of the unit, and any services, utilities and amenities provided (24 CFR 982.507[b]). Because the determination of the amount of any rental increase involves the exercise of discretion, it is not subject to mandamus. * * *

Although the eventual determination of reasonable rent will be the product of NYCHA’s judgment, the agency does not enjoy similar discretion to not make a decision at all on the rent increase requests. The applicable regulation, relied upon by NYCHA, provides that before any rent increase is allowed, NYCHA “must redetermine the reasonable rent” (24 CFR 982.507[a][2][i] [emphasis added]; see also 24 CFR 982.519[a] [under regulation relied upon by petitioners, NYCHA must annually adjust rent at owner’s request]). Upon the proper submission of a request for rent increase, NYCHA must process the request and come to a determination, whether adverse to petitioners’ position or not. NYCHA cannot leave petitioners in limbo, neither granting nor denying their requests, many of which have been pending for a significant amount of time. Thus, the petition states a claim for mandamus relief to the extent it seeks an order directing NYCHA to make a determination with respect to the rent increase requests … . Matter of Flosar Realty LLC v New York City Hous. Auth., 2015 NY Slip Op 01906, 1st Dept 3-10-15

 

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Criteria for (Upward) Departure from the Risk Level Assessed by the Board of Sex Offenders Explained

The First Department determined the SORA court properly departed from the recommendation by the Board of Sex Offenders (the Board) that defendant be assessed a level one sex offender.  The defendant had communicated in an Internet chat room with a police officer posing as a 13-year-old girl. Upward departure (to level two) was deemed warranted because, although there was no actual victim, the defendant’s behavior indicated he posed a risk to young girls and might re-offend. The court explained when departure from the Board’s recommendation is warranted:

The court concluded that the Board’s allocation to defendant of risk level one was inadequate and determined him to be a risk level two. The court stated, in relevant part:

“I don’t think this level would be appropriate for somebody who might re-engage in this conduct because the next person that he’s in contact with could very well be a real child and that person would be victimized, and I don’t think that this qualifies under the lowest level. This is not like one single, you know, inadvertent contact with somebody. This is a relationship that he attempted to develop, and as if over the period of days he got more and more explicit, counsel, indicated to her what he wanted to do, all the while thinking she’s a 13 year-old girl. I don’t believe that this risk score or the Board’s recommendation accurately reflects even the risk of his re-offending, counsel, or the harm that would be caused if he did re-offend, which are the two factors that the court is supposed to weigh in assessing his risk.” …

Although the Board’s assessment of a risk level is presumed to be correct, the reviewing court is to consider it as only a recommendation from which it, as an exercise of its discretion, can depart if there is clear and convincing evidence that a departure is warranted (…Correction Law 168-n[3]). The court’s analysis is not limited to tallying up points it believes the Board did not assess; rather, the court can adjust the risk level upwards if it determines that there are “aggravating factors not adequately accounted for in the [RAI]” … . This rule derives from the Board’s “Risk Assessment Guidelines and Commentary,” (the Guidelines), which note that “an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would, therefore, deprive the Board or a court of the ability to exercise sound judgment and to apply its expertise to the offender” … . Conversely, as noted, the Board’s determinations are presumptive, and not to be routinely overturned … .  People v Macchia, 2015 NY Slip Op 01883, 1st Dept 3-10-15

 

 

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Involuntary Retention Appropriate—Respondent Suffered from Developmental Disability Which Originated Before the Age of 22

The Third Department reversed Supreme Court, finding the petitioner demonstrated respondent suffered from developmental disabilities justifying involuntary retention in a mental health facility:

Pursuant to Mental Hygiene Law article 15, when a facility seeks to retain an individual against his or her will, such retention may occur when the person has an alleged developmental disability that, as is relevant here, can be attributed to mental retardation that originated before he or she turned 22 years of age, has existed on a continuous basis and has severely limited his or her ability to function in society (see Mental Hygiene Law §§ 1.03 [22]; 15.01, 15.27 [a]). Further, the individual will be subject to involuntary care and treatment if it is “essential to his [or her] welfare, and . . . his [or her] judgment is so impaired that he [or she] is unable to understand the need for such care and treatment” (Mental Hygiene Law § 15.01; see Matter of Robert OO., 57 AD3d 1304, 1305 [2008]…). Our authority to review factual findings made in retention cases of this nature is as broad as that of the trial court … and “we may make our own findings of fact if ‘no fair interpretation of the evidence . . . can support the [court’s] determination'” … . Matter of William T., 2015 NY Slip Op 01857, 3rd Dept 3-5-15

 

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Negligent Highway Design Not Demonstrated/Plaintiff’s Amnesia Did Not Excuse Submission of Proof of Proximate Cause

The Third Department determined summary judgment was properly awarded to county in case alleging negligent highway design.  Plaintiff’s vehicle left the roadway and went down an embankment, incurring traumatic brain injury resulting in amnesia re: the accident.  The complaint alleged there should have been a guide rail where plaintiff’s vehicle left the road.  However, there was a twenty-foot wide flat area between the edge of the road and the embankment. The court noted that the plaintiff’s amnesia did not excuse her from submitting proof of proximate cause:

“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” … . While this duty includes providing adequate warning signs and guide rails or other barriers in appropriate circumstances, a municipality will not be held liable for a breach of duty unless the breach proximately caused the accident … . Accordingly, to establish a cause of action for negligent highway design, plaintiffs were required to provide evidentiary facts that could support a finding that defendant breached its duty to maintain the road in a reasonably safe condition, and that this breach was a proximate cause of the accident. * * *

Plaintiff’s amnesia as to the cause of the accident does not excuse her from submitting prima facie proof of proximate cause. In a proper case, an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of events … . However, that doctrine is inapplicable where, as here, the defendant has no greater access to the underlying facts than the amnesiac plaintiff … . Moreover, even when the doctrine applies, the burden remains on the amnesiac plaintiff to present prima facie proof of the defendant’s negligence to permit a jury to base its verdict on evidence rather than speculation … . This burden may not be satisfied by “inferences as to causation which are based solely upon speculation” … . As plaintiffs neither made an evidentiary showing that defendant breached its duty to construct and maintain the road in a safe condition nor that such a breach proximately caused the accident, summary judgment was properly granted to defendant on the ground that plaintiffs failed to establish a cause of action for negligent highway design.  Lindquist v County of Schoharie, 2015 NY Slip Op 01852, 3rd Dept 3-5-15

 

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