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Warrantless Cell Phone Search Required Suppression and a New Trial

The First Department ordered a new trial because the police searched defendant’s phone without a warrant and used photos found on the phone as the basis for a search warrant:

The court should have granted defendant’s motion to suppress photographs obtained from his cell phone. After the police arrested defendant and seized his phone, an officer looked through it without a warrant, and found two photos stored on the phone that depicted a pistol resembling the pistol recovered in this case. It was not disputed that the search of defendant’s cell phone was unlawful. Moreover, a recent decision of the United States Supreme Court holds that a cell phone is not a proper subject of a warrantless search incident to arrest … .

After finding the photos on the phone, the same officer averred in an affidavit in support of an application for a search warrant, which specifically sought to search photographs among other things on the phone, that there was reasonable cause to believe that evidence concerning defendant’s possession of a firearm existed on defendant’s phone. This evidence demonstrated that the “decision to seek the warrant was prompted by what [the police] had seen during the initial entry” … . Rather than applying for a warrant on the basis of mere probable cause, the officer “achieve[d] certain cause by conducting an unlawful confirmatory search,” which “undermines the very purpose of the warrant requirement and cannot be tolerated” … . Accordingly, even if there were independent probable cause for the warrant, it would not immunize the initial warrantless search, or permit the subsequently-granted warrant to render the photos admissible … . Nor may the inevitable discovery doctrine be applied to this evidence; the exception does not apply where “the evidence sought to be suppressed is the very evidence obtained in the illegal search” … . People v Marinez, 2014 NY Slip Op 06668, 1st Dept 10-2-14

 

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Falling Block Not Shown to Be Related to the Failure of a Safety Device—Labor Law 240(1) Did Not Apply

The First Department determined injury from a stone block which fell from a pallet was not covered by Labor Law 240(1) because it was not demonstrated the incident resulted from the failure of a safety device:

The motion court properly granted defendants’ cross motion to dismiss plaintiff’s Labor Law § 240(1) claim. Section 240(1) does not apply automatically every time a worker is injured by a falling object … . Rather, the “decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … . The worker must establish that the object fell because of the inadequacy or absence of a safety device of the kind contemplated by the statute … . In order for something to be deemed a safety device under the statute, it must have been put in place “as to give proper protection” for the worker (§ 240[1]).

Here, we conclude that plaintiff’s injury was not caused by the absence or inadequacy of the kind of safety device enumerated in the statute … . Plaintiff does not contend that the block itself was inadequately secured. Instead, plaintiff argues that § 240(1) is applicable because his injuries were caused by defendants’ failure to provide an adequate safety device to hold the plastic tarp in place. Specifically, plaintiff maintains that the plastic tarp was inadequately secured because, if it had been properly secured, such as with ropes and stakes, plaintiff’s injury would not have occurred.

Plaintiff’s argument is unconvincing. The plastic tarp was not an object that needed to be secured for the purposes of § 240(1)…, nor is there any indication that the tarp caused plaintiff’s injuries. Guallpa v Leon D DeMatteis Constr Corp, 2014 NY Slip Op 06666, 1st Dept 10-2-14

 

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Labor Law 241(6) Claim Should Not Have Been Dismissed—Although Claimant Did Not Perform “Labor-Intense Aspects of the Project” His Finance-Related Job Entailed On-Site Inspections

The First Department determined plaintiff’s Labor Law 241(6) claim should not have been dismissed.  Although plaintiff did not perform labor, his finance-related job required that he inspect the work site.  Plaintiff tripped and fell while doing an inspection:

Plaintiff’s Labor Law § 241(6) claim was improperly dismissed on the ground that plaintiff was not covered under the statute. Plaintiff testified that he was an onsite project manager, employed by one of multiple general contractors on the subject construction project, whose job pertained to financial issues such as billing of subcontractors and revenue projections for the project. He testified that he tripped and fell in a vestibule he was walking through, intending to conduct a visual inspection of a condition alleged … to support a back charge for “additional work,” in order to determine whether this claim was substantiated. Thus, plaintiff was not merely working in a building that happened to be under construction … . Rather, his job duties, including the inspection he was conducting at the time of the accident, were contemporaneous with and related to ongoing work on the construction project … . Thus, plaintiff was covered under the statute even though he did not perform the “labor-intense aspects of the project” … .  DeSimone v City of New York, 2014 NY Slip Op 06667, 1st Dept 10-2-14

 

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Posttraumatic Stress Disorder Deemed a Compensable Consequential Injury Stemming from a Prior Physical Injury

The Third Department affirmed the board’s finding that claimant was entitled to workers’ compensation benefits based in part upon posttraumatic stress disorder.  Claimant worked in a facility which housed juveniles who had committed the equivalent of felonies. Claimant was injured trying to control an unruly resident.  Thereafter, claimant, as part of his job, monitored video feeds from the facility and he often observed unruly behavior which reminded him of the incident in which he was injured:

Whether a subsequent disability arose consequentially from an existing compensable injury is a factual question for resolution by the Board, and its determination will not be disturbed when supported by substantial evidence” … . A consequential injury, in turn, is one that “result[s] directly and naturally from claimant’s prior injuries and the disability thereby produced” … . Claimant here testified that he was assigned to monitor video feeds of the facility upon his return to work from his back injury, work that required him to constantly observe the unruly behavior of the residents and reminded him of the initial incident and his injuries. His injuries left him feeling helpless to assist the coworkers he observed dealing with the residents, and he ultimately sought medical assistance after he became enraged and blacked out due to watching numerous incidents where other employees required aid. Claimant was thereafter diagnosed with posttraumatic stress disorder, accompanied by anxiety and depression, and his treating psychologist stated in no uncertain terms that those conditions flowed from the May 2010 incident and the injuries he sustained therein. The Board credited the psychologist’s factually specific opinion … , and the employer submitted no medical evidence to rebut it. Under these circumstances, we find substantial evidence in the record to support the Board’s determination … . Matter of Dowdell v Office of Family & Children Servs., 2014 NY Slip Op 06626, 3rd Dept 10-2-14

 

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Court Indicates a Certification Claimant Is Not Working Can Be a “Willful Misrepresentation” Even If “Unintentional”

The Third Department determined claimant was properly denied benefits because of his self-employment activities which he did not report.  The court noted that the certification that claimant was not working supports the finding that he made a “willful misrepresentation even if it was unintentional:”

Whether a claimant is totally unemployed is a factual issue for the Board to decide, and its determination will be upheld if supported by substantial evidence … . A claimant who performs activities on behalf of an ongoing business may not be considered totally unemployed, even if such activities are minimal or the business is not profitable, if he or she stands to benefit financially from its continued operation … . Here, claimant incorporated the business, opened a business checking account, created a business logo, started developing a business website, distributed business cards, attended seminars and trade shows and had apparel samples made by overseas manufacturers, all in furtherance of establishing a lucrative business. Notwithstanding the fact that claimant was not receiving income from the business, substantial evidence supports the Board’s decision that he was not totally unemployed … . Furthermore, given that claimant read the provisions of the unemployment insurance handbook relating to self-employment, but represented that he was not working when certifying for benefits, we find no reason to disturb the Board’s finding that he made a willful misrepresentation — even if it was unintentional … . Matter of Romero…, 2014 NY Slip Op 06634, 3rd Dept 10-2-14

 

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Alleged Misrepresentations Were Not Collateral or Extraneous to the Contract—Fraud Cause of Action Will Not Lie

Re: an elevator-maintenance contract, the Second Department explained when a fraud cause of action must be dismissed in the context of a breach of contract action:

We find unpersuasive the plaintiff’s contention that the Supreme Court erroneously granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the fifth cause of action, which alleged fraud. “Where a claim to recover damages for fraud is premised upon an alleged breach of contractual duties, and the allegations with respect to the purported fraud do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie” … . Here, the complaint and the accompanying affidavits alleged that the individual defendants made knowingly false statements that the subject elevators would be promptly repaired and properly maintained, and that any governmental violations that were issued with regard to them would be resolved and closed. However, the parties’ agreement, as referenced by the defendants in support of their motion, “conclusively established that the alleged fraudulent misrepresentations at issue were not collateral or extraneous to the contract. Rather, the alleged misrepresentations amounted only to a misrepresentation of the intent or ability to perform under the contract” … . Renaissance Equity Holdings LLC v Al-An El Maintenance Corp, 2014 NY Slip Op 06570, 2nd Dept 10-1-14

 

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Parol Collateral Agreement Can Be Alleged Where Written Contract Does Not Embody Entire Agreement/Where Existence of Contract Is Disputed, Causes of Action for Unjust Enrichment and Quantum Meruit Are Okay/Courts Can Not Excuse Failure to Strictly Comply with Lien Law Requirements

The Second Department noted:  proof of a parol collateral agreement is okay where the written contract is not intended to embody the whole agreement; where the existence of a contract is in dispute, causes of action for unjust enrichment and quantum merit are okay; courts do not have discretion to excuse strict compliance with Lien Law 11:

…”[A] written agreement does not exclude proof of a parol collateral agreement made even between the same parties, where the written contract is not intended to embody the whole agreement and does not on its face purport to cover completely the subject-matter of the alleged collateral agreement” … . Here, although the first cause of action was based on a written contract, the plaintiff stated a second cause of action based on the breach of an alleged oral agreement as to services not encompassed in the written agreement.

As to the third and fourth causes of action, where, as here, the existence of the contract is in dispute, the plaintiff may allege causes of action to recover for unjust enrichment and in quantum meruit as alternatives to a cause of action alleging breach of contract (see CPLR 3014…).

Lien Law § 11 provides that within 5 days before or 30 days after filing the notice of lien, a lienor “shall” serve a copy of such notice upon the owner, as relevant here, at the owner’s “last known place of residence.” However, the plaintiff’s affidavit of service of the mechanic’s lien demonstrates that the plaintiff failed to serve the notice of the mechanic’s lien in compliance with Lien Law § 11, as the notice was not sent to the defendants’ last known place of residence. As strict compliance with the statutory requirements is mandated and the courts do not have discretion to excuse noncompliance… . Thompson Bros Pile Corp v Rosenblum, 2014 NY Slip Op 06577, 2nd Dept 10-1-14

 

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Meaning of Imprecise and Confusing Term “Violent Felony Override” Explained

The Second Department, in response to the defendant’s request for a “violent felony override” at sentencing, explained that the confusing term relates to a document that sets force the precise statute, including the section and subdivision, of which the defendant was convicted.  Certain specific enumerated offenses, although violent felonies, will not disqualify an inmate from eligibility for temporary release. Only the Department of Corrections can make the determination whether a conviction disqualifies an inmate from eligibility:

“Violent felony override” is not a term contained in a statute or regulation. It is an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense (see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility … . One source of confusion that may arise from the use of the term “violent felony override” is that the term may imply that the document itself qualifies the inmate for eligibility for temporary release. It does not. It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility (see generally 7 NYCRR 1900.4).

A second source of confusion that may arise from the use of the term “violent felony [*2]override” to describe the document specified in 7 NYCRR 1900.4(c)(1)(iii) is the erroneous belief that the issuance of the document is discretionary. Although this provision refers to “a court-generated document or document generated by the Office of the District Attorney,” a defendant is entitled to have the exact subdivision of the statutory provisions under which he or she was convicted specified in the sentence and commitment: “[a] sentence and commitment or certificate of conviction, specifying the section, and to the extent applicable, the subdivision, paragraph and subparagraph of the penal law or other statute under which the defendant was convicted, or a certified copy thereof . . . must be delivered to the person in charge of the correctional facility or office of children and family services facility to which the defendant is committed at the time the defendant is delivered thereto” … . People v Lynch, 2014 NY Slip Op 06608, 2nd Dept 10-1-14

 

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Criteria for Expanded Jury Instruction on the Voluntariness of a Statement Explained (Criteria Not Met Here)—Trial Judge Should Not Have Participated in Readback of Testimony (Not Reversible Error Here)

The Second Department explained when an expanded jury instruction concerning the voluntariness of defendant’s statement is proper (criteria not met here), and noted that a judge should never participate in the readback of testimony (not reversible error here):

A defendant is entitled to raise the issue of voluntariness both at a suppression hearing and at trial (see CPL 710.70[3]…). At trial, however, the court is not required to instruct the jury on the issue of voluntariness unless the defendant requests the charge, and “evidence sufficient to raise a factual dispute has been adduced either by direct or cross-[*2]examination” … . Here, nothing in the evidence adduced at trial raised a factual dispute about the voluntariness of the defendant’s statement … . * * *

…[W]e again remind the trial justice that he should not participate as a reader when readbacks are requested by a jury …, and that this type of participation should not be repeated. In this regard, the court’s practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback … . “[A]s a general matter, a trial judge should shun engaging in readbacks of testimony. In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors”… . People v Baranov, 2014 NY Slip Op 06596, 2nd Dept 10-1-14

 

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“Substantial Evidence” Standard of Court Review Explained

The Second Department explained the “substantial evidence” standard of court review of an administrative agency’s determination after a disciplinary hearing:

Substantial evidence “is related to the charge or controversy and involves a weighing of the quality and quantity of the proof”; the term “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . “Where there is conflicting evidence or different inferences may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . Matter of Sullivan v County of Rockland, 2014 NY Slip Op 06593, 2nd Dept 10-1-14

 

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