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Violation of Inmate’s Right to Call a Witness Required Expungement

The Third Department expunged a disciplinary determination because the inmate’s right to call a witness was violated and a rehearing was not possible:

Although  [the] witness  agreed  to testify, the  Hearing Officer denied  the  request  for this witness  on  the  basis that the conversation  took  place  after the  incident that is the  subject of the administrative segregation recommendation. Under the circumstances  presented,  we  conclude  that the  testimony  of this witness  was  not  irrelevant and thus the request  was  improperly denied….  As such, the Hearing Officer’s ruling constituted a violation of petitioner’s conditional, regulatory right to call witnesses …. Matter of DeBoue, 515486, 3rd Dept, 7-3-13

 

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Denial of Inmate’s Request for Evidence and Failure to Include Confidential Testimony Required Annulment

In annulling the disciplinary determination, the Third Department noted the Hearing Officer’s failure to explain the denial of the inmate’s request for evidence and failure to include confidential testimony which was relied upon:

Inasmuch as the record before us fails to include any  explanation for the denial of the requested evidence, which may have prejudiced his defense, and is incomplete in that it does not include the confidential testimony taken and relied upon by the Hearing Officer in reaching the determination, we  are unable to undertake meaningful review… .  Matter of Gallagher, 514650, 3rd Dept 7-3-13

 

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Failure to Transcribe Entire Hearing Required Annulment

In annulling the disciplinary determination, the Third Department explained that the apparent failure to transcribe the entire tape recording of the hearing made it impossible to know whether evidence favorable to the inmate’s defense was presented:

It appears from the transcript that only the first side of the audiotape was transcribed as the stenographer made a notation, “[s]econd side of tape not audible-runs on fast speed only,” and then abruptly ended the transcript.    We cannot ascertain what was on the second side of the tape or if it would have been beneficial to petitioner’s defense… ..Notably, the transcript does not reveal the disposition of petitioner’s request to have his wife and family members testify as witnesses at the hearing. In view of this, and given the potentially significant testimony that may be missing, the determination must be annulled… . Matter of Farrell, 514504, 3rd Dept 7-3-13

 

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Standard for Liability of Members of Volunteer Fire Company

In affirming the denial of plaintiff’s motion for summary judgment, the Second Department explained the standard for finding liability on the part of members of volunteer fire companies:

Members of volunteer fire companies may not be held liable for acts done in the performance of their duties in the absence of “willful negligence or malfeasance” (General Municipal Law § 205-b;…. Here, the plaintiff failed to establish, prima facie, that the manner in which [defendant]. operated the vehicle at the time of the accident constituted willful negligence or malfeasance….  Schleger v Jurcsak, 2013 NY Slip Op 05056, 2nd Dept 7-3-13

 

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Garbage on Sidewalk May Create Liability

The Second Department determined that defendant’s motion for summary judgment should have been denied.  The plaintiff was injured when his bicycle struck garbage and debris on a sidewalk abutting a building owned by defendants.

New York City Administrative Code § 7-210 imposes a duty upon property owners to maintain the sidewalk adjacent to their property. That duty includes the duty to remove “dirt or other material from the sidewalk,” which includes debris on the sidewalk which came from garbage bags placed on the sidewalk by the property owner (New York City Administrative Code § 7-210 [b];…). On their motion for summary judgment, the defendants bore the burden of establishing that they neither created the hazardous condition nor had actual or constructive notice of its existence…. The defendants failed to establish their entitlement to judgment as a matter of law. They failed to demonstrate that they did not create a dangerous condition, nor did they establish that they properly maintained the sidewalk as required by Administrative Code of the City of NY § 7-210… .  Weinberg v 2345 Ocean Assoc, LLC, 2013 NY Slip Op 05060, 2nd  Dept 7-3-13

 

 

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Unsafe Access to Roof Supported Summary Judgment

In affirming the grant of summary judgment to the plaintiff pursuant to Labor Law 240 (1) based on the failure to provide equipment which would allow safe access to the roof where the window-washing equipment in need of repair was located, the First Department explained:

The record demonstrates that the Met and Lincoln Center failed to provide adequate safety devices to protect plaintiff from the risks associated with gaining access to the Opera House roof and the steel carriage rail, and therefore they are liable for plaintiff’s injuries under Labor Law § 240(1)…. Not only did plaintiff have to be elevated to the roof of the Opera House from the sixth floor, for which a ladder was provided, but he also had to use both hands to close the hatch door while standing on the ladder. No safety device was provided to protect him against the risk associated with breaking three-point contact with the ladder so as to use both hands to close the hatch door. Mayo v Metropolitan Opera Assn Inc, 2013 NY Slip Op 04993, 1st Dept 7-2-13

 

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Criteria for Domicile Explained

In upholding Surrogate Court’s determination decedent’s domicile was New York, the First Department explained the relevant criteria as follows:

The Surrogate’s Court Procedure Act defines domicile as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return” (SCPA 103[15]). “The determination of an individual’s domicile is ordinarily based on conduct manifesting an intent to establish a permanent home with permanent associations in a given location”…. A person’s domicile is generally a mixed question of fact and law, which the court must determine after reviewing the pertinent evidence…. No single factor is dispositive…, and the unique facts and circumstances of each case must be considered…. A party alleging a change of domicile has the burden of proving that change by clear and convincing evidence … .  Matter of Ranftle, 2013 NY Slip Op 05006, 1st Dept 7-2-13

 

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Plaintiff Unable to Prove Actual Malice—Summary Judgment to Defendant

In determining a libel complaint brought by the Humane Society of the United States (HSUS) against defendants based upon an ad defendants placed in the New York Times which was captioned “Why is [HSUS] Helping a Terrorist Group Raise Money?” should have been dismissed, the First Department wrote:

The court should have dismissed the amended complaint as against all of the defendants. Contrary to plaintiff’s contention, it is a public figure…. It thrust itself to the forefront of the public controversy on animal cruelty and sought to influence public action on this issue. Accordingly, as a public figure, plaintiff must show by clear and convincing evidence that defendants published the ad at issue with actual malice in order to prevail on any claim of libel….

“[A] libel defendant’s burden in support of summary judgment is not . . . to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence” …. Here, defendants were entitled to summary judgment because they cited deficiencies in the record that prevent plaintiff from proving actual malice (i.e., that defendants “entertained serious doubts as to the truth of [its] publication or acted with a high degree of awareness of . . . probable falsity . . . at the time of publication”) by clear and convincing evidence…. Humane League of Phila Inc v Berman & Co, 2013 NY Slip Op 04989, 1st Dept 7-2-13

 

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Elements of Tampering with Physical Evidence

The First Department explained the elements of the offense of tampering with physical evidence as follows:

…[A] person is guilty of the completed crime of tampering with physical evidence when, “[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment” (Penal Law 215.45[2]).

The offense of tampering does not require the actual suppression of physical evidence, but only that a defendant perform an act of concealment while intending to suppress the evidence…. Regardless of whether the defendant is successful in suppressing the evidence, once an act of concealment is completed with the requisite mens rea, the offense of tampering has been committed.  People v Eaglesgrave, 2013 NY Slip Op 05001, 1st Dept 7-2-13

 

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Detention and Frisk of Juvenile Supported by Reasonable Suspicion

The First Department determined the following scenario provided reasonable suspicion sufficient to justify the detention and frisk of the juvenile:

A police officer testified that she was investigating an unruly crowd when she observed appellant walking towards her with his arm under his shirt, clutching an object held at his waist. Based on the rigidity of his body and how tightly he held the object, she believed it to be a weapon. As he passed by, she heard him say that he was “going to get him.” When she approached with her shield visible around her neck, appellant moved towards her, whereupon she grabbed his hand and felt the handle of a knife. During a brief struggle, the knife fell to the ground. Appellant was placed under arrest and the knife, which had a six-inch blade, was recovered.  Matter of Daquan B, 2013 NY Slip Op 04974 1st Dept 7-2-13

 

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