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THE COVID STATUTE OF LIMITATIONS TOLLS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, explained how the COVID toll of the statute of limitations works:

“A toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite and, in this instance, readily identifiable time period” … . “[T]he period of the toll is excluded from the calculation of the time in which the plaintiff can commence an action” (id.). In response to the COVID-19 pandemic, on March 20, 2020, the Governor issued [an] Executive Order … , which tolled “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to . . . the civil practice law and rules . . . from the date of this order until April 19, 2020.” The Governor later issued a series of nine subsequent executive orders that extended the tolling period through November 3, 2020 … . Thus, here, the statute of limitations was tolled from March 20, 2020, at which time 289 days remained in the limitations period, until November 3, 2020, and thereafter the “statute of limitations began to run again, expiring on [August 19, 2021]” … . State of New York v Williams, 2024 NY Slip Op 00709, Fourth Dept 2-9-24

Practice Point: The number of days left on the statute of limitations when the COVID toll was imposed remains when the toll is lifted.

 

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THE STREET REPAIR WORK DONE BY THE CITY IN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS DONE MORE THAN A YEAR BEFORE AND DETERIORATED GRADUALLY OVER TIME; IN ORDER FOR THE CITY TO BE LIABLE FOR CREATING THE DANGEROUS CONDITION THE DEFECT MUST HAVE BEEN THE IMMEDIATE RESULT OF THE WORK (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, dismissed the action against the city in this slip and fall case. There was a question whether the city repair to the street deteriorated over a period of a year or more. But in order to be liable for creating a dangerous condition, the defect must be the “immediate result” of the work done:

Plaintiffs failed to raise “a triable issue of fact concerning the applicability of [an] exception to the prior written notice requirement, i.e., whether the City created the allegedly dangerous condition through an affirmative act of negligence” … . The exception is limited to work by the City that immediately results in the existence of a dangerous condition. Although the record supports the inference that the City may have created a dangerous condition by failing to replace a temporary cold patch with a permanent repair, the resulting allegedly dangerous condition here developed over a period greater than a year and did not “immediately result” from the City’s work … . Graham v City of Syracuse, 2024 NY Slip Op 00710, Fourth Dept 2-9-24

Practice Point: In a slip and fall case, in order for a city to be liable for creating the dangerous condition, the defect must be the “immediate result” of the work done by the city. Here the work was done more than a year before and the defect developed gradually over time. The city was not liable.

 

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THE MAJORITY AFFIRMED THE CONVICTION BUT A TWO-JUSTICE DISSENT ARGUED DEFENSE COUNSEL WAS INEFFECTIVE FOR ALLOWING PREJUDICIAL EVIDENCE TO COME IN WITHOUT A STRATEGIC JUSTIFICATION (FOURTH DEPT).

The Fourth Department majority affirmed defendant’s conviction, but a two-justice dissent argument defense counsel allowed prejudicial evidence to come in without any strategic justification:

From the dissent:

Meaningful representation is “reasonable competence, not perfect representation” … . “However it is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense . . . and who is familiar with, and able to employ at trial basic principles of criminal law and procedure” … . “Whether counsel has adequately performed these functions is necessarily a question of degree, in which cumulative errors particularly on basic points essential to the defense, are often found to be determinative” … .

Here, when the People sought to introduce the order of protection in evidence, defense counsel failed to seek removal of the portion of that order stating the crimes for which defendant had previously been convicted, despite the fact that Supreme Court previously denied the People’s Sandoval application. Moreover, as a direct result of defense counsel’s open-ended questions, a witness stated during cross-examination that defendant was previously incarcerated. Most critically, however, defense counsel’s open-ended questioning of the victim during cross-examination revealed that defendant had, on a prior occasion, broken into her home through the basement window. In this prosecution for, inter alia, burglary in the first degree, we cannot foresee evidence being more prejudicial than testimony elicited by his own counsel that defendant previously committed the same criminal act against the same victim. People v Howard, 2024 NY Slip Op 00711, Fourth Dept 2-9-24

Practice Point: The majority affirmed, but two dissenting judges argued defense counsel unnecessarily put evidence which was highly prejudicial to his client before the jury.

 

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THE DENIAL OF RELIGIOUS EXEMPTIONS TO THE COVID VACCINE MANDATE WAS NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, determined that the respondent NYS Unified Court System did not act arbitrarily and capriciously when it denied the petitioners’ (29 nonjudicial employees’) requests for religious exemptions from the COVID vaccine mandate. The Appellate Division, disagreeing with Supreme Court, held it was appropriate to deny exemptions based upon the employees’ acknowledging they have taken medication which was tested using fetal cells but now claim the testing of the COVID vaccine using fetal cells violated their religious beliefs:

Supreme Court found that respondents irrationally adopted an “all-or-nothing” approach by concluding that these petitioners could not have rejected the vaccine on religious grounds, without also rejecting the use or contemplated use of other medications or vaccinations developed using the same fetal cell lines. Supreme Court reasoned that it would not be inconsistent for an applicant to continue and/or consider taking other medications “critical to their lives or well-being, such as thyroid medication or hydroxychloroquine.” We disagree with Supreme Court’s thesis. The very purpose of the vaccine mandate was to protect and preserve the public health by “[s]temming the spread of COVID-19[, which] is . . . a compelling interest” … . From our perspective, the Committee could and did rationally conclude that an applicant’s continued and/or contemplated use of other medications or vaccinations tested on fetal cell lines — including the current version of medications originating before fetal cell lines were developed, but now tested utilizing fetal cell lines — while refusing to take the COVID-19 vaccination on that very basis, reflected an inconsistency undermining the sincerity of that applicant’s religious beliefs. Matter of Ventresca-Cohen v DiFiore, 2024 NY Slip Op 00664, Third Dept 2-8-24

Practice Point: The inquiry here was whether the request for exemption from the COVID vaccine mandate was based upon sincerely held religious belief. The fact that petitioners had taken other medication tested with fetal cells indicated the “fetal-cell-testing” objection to the COVID vaccine was not based upon a sincerely held religious belief.

 

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PLAINTIFF FELL THROUGH AN OPENING IN THE FLOOR WHEN THE PLYWOOD COVERING THE OPENING SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff fell through an opening in the floor when the plywood covering the opening shifted:

While [defendants] argue that plaintiff was the sole proximate cause of his accident, that defense is inapplicable here, since “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . Their argument that there was no violation in that the opening, which had no railings or other affixed barricades, was adequately protected by the sheet of plywood, is unavailing … . Similarly, their claim that an unattributed statement in plaintiff’s … accident report that he was lifting wood at the time of the accident implies that he intentionally removed the plywood himself does not create a question of fact … . The argument that plaintiff should not have been working in that area is contradicted by the scope of his employer’s contract, photographs, and his coworker’s testimony. In any event, it is irrelevant and would constitute, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Devlin v AECOM, 2024 NY Slip Op 00673, First Dept 2-8-24

Practice Point: A fall through an opening in the floor which was inadequately protected by a sheet of plywood warranted summary judgment on plaintiff’s Labor Law 240(1) cause of action.

 

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THE PEOPLE DID NOT DEMONSTRATE AN INVENTORY LIST WAS CREATED FOR THE SEARCH OF DEFENDANT’S CAR; THEREFORE THE PEOPLE DID NOT PROVE THE SEARCH WAS A VALID “INVENTORY SEARCH” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the People did not prove the search of a car which turned up a firearm and marijuana was a valid “inventory search:”

The People failed to carry their initial burden of establishing a valid inventory search of defendant’s vehicle. Court of Appeals precedent “requires that a police officer prepare a meaningful inventory of the contents of an accused’s car” … . Although the People failed to establish that the officers prepared the prescribed inventory search form, such failure is considered a mere “technical defect” and “is not fatal to the establishment of a valid search as long as (1) the search, in accordance with the ‘standardized procedure,’ is designed to produce an inventory and (2) the search results are fully recorded in a usable format” … . Here, the People failed on this latter point, since there was no evidence offered to show that the officers created the “hallmark of an inventory search: a meaningful inventory list” … . * * *

Ultimately, no form, list, or usable record was produced before the hearing court, and there is otherwise no basis on which to conclude that an inventory list or record of the search results was ever created, either during the search or after its completion. People v Cabrera, 2024 NY Slip Op 00685, First Dept 2-8-24

Practice Point: In order to prove items were seized from a car pursuant to a valid “inventory search,” some sort of inventory list must have been created during the search.

 

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QUESTIONS OF FACT ABOUT WHETHER REPLACING A WATER HEATER CONSTITUTED A REPAIR AS OPPOSED TO MAINTENANCE AND WHETHER AN ELEVATION-RELATED HAZARD WAS INVOLVED IN MOVING THE WATER HEATER WITH A HAND TRUCK PRECLUDED DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined replacement of a 700 pound water heater which involved moving it with a hand truck raised questions of fact about the applicability of Labor Law 240 (1):

Plaintiff’s evidence * * * raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates approximately 700 pounds, constituted a repair within the meaning of Labor Law § 240(1), as distinguished from routine maintenance … . Defendants did not offer proof, apart from conclusory statements, as to the cause of the water heater’s breakdown other than that the mechanism was leaking and no longer functioning. Defendants offered no specific proof that the water heater’s failure was due to normal wear and tear of particular parts or of its system itself. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against … . Rodriguez v Fawn E. Fourth St. LLC, 2024 NY Slip Op 00690, First Dept 2-8-24

Practice Point: There were questions of fact whether replacing a water heater was a “repair” and whether moving the 700-pound water heater on a hand truck was an “elevation-related” hazard within the meaning of Labor Law 240(1).

 

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FAILURE TO SUBMIT PROOF OF MAILING THE SUMMONS AND COMPLAINT PURSUANT TO CPLR 308 (2) IS A JURISDICTIONAL DEFECT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the failure to offer any proof of mailing the summons and complaint was a jurisdictional defect:

Plaintiff’s failure to comply with CPLR 308(2)’s mailing requirement was not a mere “technical infirmity” that may be overlooked by the court pursuant to CPLR 2001 … . “‘In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant — notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'” … . The court found that a late mailing under CPLR 308(2) was not a mere technical infirmity, as it increased the likelihood that the defendant did not receive proper notice of the legal proceeding (id. at 1251). We likewise hold that a plaintiff’s complete failure to comply with CPLR 308(2)’s mailing requirement greatly increases the likelihood that a defendant will not receive the pleadings and have an opportunity to answer. Accordingly, plaintiff’s failure to offer proof of mailing under CPLR 308(2) was a jurisdictional defect requiring denial of plaintiff’s motion for a default judgment. Williams v MTA Bus Co., 2024 NY Slip Op 00692, First Dept 2-8-24

Practice Point: Both delivery and mailing of the summons and complaint is required to effect service of process pursuant to CPLR 308 (2). Failure to submit proof of mailing is a jurisdictional, not a technical, defect.

 

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FAILURE TO FILE AFFIDAVITS OF SERVICE WITH THE CLERK OF THE COURT WITHIN 20 DAYS IS NOT A JURISDICTIONAL DEFECT; SERVICE IS DEEMED COMPLETE 10 DAYS AFTER FILING A MOTION FOR A DEFAULT JUDGMENT WITH THE AFFIDAVITS OF SERVICE (FIRST DEPT). ​

The First Department noted that the “nail and mail” service of process was valid and the failure to file affidavits of service within 20 days was not a jurisdictional defect:

… [E]ach affidavit of service states that the process servers made three separate attempts at serving the individual defendants at various dates and times before resorting to “nail and mail” service (CPLR 308(4) …). Plaintiffs’ failure to file affidavits of service with the clerk of the court within 20 days of service is a “mere irregularity” rather than a jurisdictional defect and does not render the service of process a “nullity” … . In any event, service was deemed complete 10 days after plaintiffs filed their initial motion for default judgment with the affidavits of service … . General Ins. v Leandre, 2024 NY Slip Op 00598, First Dept 2-6-24

Practice Point: The “nail and mail” service was valid despite the failure to fine affidavits of service with the clerk of the court within 20 days of service.

Practice Point: Here service was deemed complete ten days after the motion for a default judgment was filed with the affidavits of service.

 

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RE-READING THE ORIGINAL JURY INSTRUCTION DID NOT ADDRESS THE CONFUSION EXPRESSED IN THE NOTE FROM THE JURY; IN ADDITION, THE JUDGE FAILED TO MAKE THE INITIAL DETERMINATION WHETHER A WITNESS WAS QUALIFIED TO OFFER EXPERT OPINION EVIDENCE; CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction, over a dissent, determined the judge’s response to a jury note was inadequate and the judge did not make the required initial determination that a witness was qualified to offer expert-opinion evidence on the child sexual abuse accommodation syndrome (CSAAS). The jury wanted to know whether a guilty verdict required that the three alleged acts of sexual abuse take place within the three-month period described in the indictment. The answer was “es,” but the judge merely re-read the original charge about which the jury was confused. With respect to the CSAAS witness, the judge left it up to the jury to decide whether she was qualified as an expert:

… [T]he jury had already been provided with a complete written copy of the court’s original instructions for its reference during deliberations. Under these circumstances, County Court’s response to the jury’s inquiry was not meaningful, as it did nothing to clarify the very specific point on which the jury was confused. “[I]n our view, this is one of those rare cases where interest of justice review is warranted. Where the court fails to give information requested upon a vital point no appellate court may disregard the error” … . * * *

Although “[t]he court is not required to explicitly declare a witness an expert before permitting [expert] testimony” … , “the trial court is vested with the initial responsibility of evaluating whether an expert possesses the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . Here, County Court abdicated its responsibility to make the initial determination as to whether [the witness] qualified as an expert. People v Goff, 2024 NY Slip Op 00656, Third Dept 2-8-24

Practice Point: A response to a jury note must clarify the confusion expressed in the note. Here, re-reading the original instruction was not sufficient.

Practice Point: Although a judge is not required to explicitly declare a witness an expert, the judge must make the initial determination whether the witness is qualified to offer reliable testimony.

 

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