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Unsigned Depositions Admissible

In ruling that both defendant’s and plaintiff’s unsigned deposition transcripts could be considered in slip and fall summary judgment motion, the Second Department wrote:

Contrary to the plaintiff’s contention, the Supreme Court properly considered the deposition transcripts submitted in support of the motion. The unsigned but certified deposition of the defendant was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent…. Additionally, in reply to the plaintiff’s opposition, the defendant submitted evidence which showed that the plaintiff’s certified deposition transcript had been submitted to her for review, but that she failed to sign and return it within 60 days. Thus, the plaintiff’s deposition transcript was properly used as fully as though it were signed…. Moreover, this evidence demonstrating the defendant’s compliance with CPLR 3116(a) was properly considered in reply because it was submitted in direct response to allegations raised for the first time in the plaintiff’s opposition papers…. David v Chong Sun Lee, 2013 NY Slip Op 03811, 2nd Dept, 5-29-13

 

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Court Did Not Abuse Discretion In Not Sentencing Pursuant to Jenna’s Law Even Though Defendant Qualified​

The Second Department, over a dissent by Justice Balkin, affirmed a determinate sentence of five years in prison.  The sentencing court chose not to apply Penal Law 60.12 (Jenna’s Law) which allows indeterminate terms of imprisonment for first-time violent felons if the victim’s domestic violence was a factor in the commission of the crime (criteria met by the defendant).  The sentencing court noted that the defendant would probably never commit another crime, but imposed the sentence as a deterrent to others:

While the court accurately noted that the sentence would have limited deterrent and rehabilitative impact on this particular defendant, the court’s aim in imposing the sentence was, in large part, to deter others from engaging in similar misconduct. Indeed, the court stated at sentencing that “[s]ociety certainly must be concerned with self-help, violent behavior that is not sanctioned by law.” Since the court viewed general deterrence as an overriding sentencing principle, we cannot say that the emphasis was erroneous or that the interest of justice calls for a reduction in the defendant’s sentence …. People v Sheehan, 2013 NY Slip Op 03859, 2nd Dept, 5-29-13

 

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10-Year Period for Predicate Felony Tolled by Incarceration​

The Second Department noted that incarceration tolls the 10-year period for consideration of a predicate felony:

Although the period of time between the defendant’s 1999 conviction and the commission of the felonies for which he stands convicted in this case was more than 10 years, the 1999 conviction constituted a predicate felony for purposes of second felony offender sentencing, since the 10-year statutory period was tolled while the defendant was incarcerated from May 5, 2000, to February 22, 2007 (see Penal Law §§ 70.06[1][b][iv], [v]; 70.70[3][b][i]). People v McCray, 2013 NY Slip Op 03857, 2nd Dept, 5-29-13

 

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No Reasonable Suspicion of Criminal Activity—Frisk of Defendant Improper​

Applying a “DeBour” analysis, the Second Department determined the police did not have the right to frisk the defendant.  The police approached the defendant because he was holding two or three cigarettes and the police thought he may be selling loose cigarettes.  The police noticed evidence of gang membership and defendant acknowledged being a member. The police asked defendant if he had a weapon and defendant did not answer.  At that point, based on seeing a bulge in defendant’s pocket, the defendant was frisked and searched. The Court wrote:

The level one request for information may include ” basic, nonthreatening questions regarding, for instance, identity, address or destination'” …. However, ” [o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing . . . the officer is no longer merely seeking information'” … and the encounter has become a level-two common-law inquiry, which must be supported by ” “a founded suspicion that criminal activity is afoot”‘” …”[A] police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” ….

“[T]o elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior” …. ” [I]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand'” …. Thus, “in order to justify a frisk of a suspect’s outer clothing, a police officer must have “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety”‘”…. Even assuming that the police were justified in conducting a level-two common-law inquiry, they lacked the reasonable suspicion necessary to support a level-three encounter consisting of a pat-down or “stop-and-frisk” search… .  People v Kennebrew, 2013 NY Slip Op 03854, 2nd Dept, 5-29-13

STREET STOPS

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Insufficient Evidence of Depraved Indifference Assault and Assault on a Police Officer

The Second Department determined there was insufficient evidence to support defendant’s convictions for depraved indifference assault and assault on a police officer.  The facts did not demonstrate defendant acted with depraved indifference, nor was the injured police officer engaged in a “lawful duty” when he stopped defendant’s car in the absence of reasonable suspicion of criminal activity:

Under these facts, where the defendant was attempting to get away from the officers’ unlawful questioning, where the injuries were caused not by the direct crash, but when the police car pivoted after being hit, and where it all happened in an instant, “the evidence did not establish the degree of depravity and indifference to human life required for depraved indifference [assault]” ….  * * *

A person commits the crime of assault on a police officer when, “with intent to prevent a . . . police officer . . . from performing a lawful duty, he [or she] causes serious physical injury to” the officer (Penal Law § 120.08). “To sustain a conviction of assault in the second [or first] degree under Penal Law § 120.05(3), the People must establish that the injured police officer was engaged in a lawful duty at the time of the assault by the defendant” … .Here, the police conduct in pulling in front of the defendant’s parked vehicle so as to block his ability to pull out of the parking space “constituted a stop, which required reasonable suspicion that the defendant [was] either involved in criminal activity or posed some danger to the police”…. However, Sergeant Pagnotta’s testimony was clear that, at no time prior to the positioning of the police car so as to block the defendant’s vehicle, nor during the ensuing encounter after Sergeant Pagnotta got out of the police car and approached the window of the defendant’s vehicle, was the defendant observed to be engaged in any criminal activity, or in any activity that would have aroused reasonable suspicion.  People v Hurdle, 2013 NY Slip Op 03849, 2nd Dept, 5-29-13

 

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Grabbing and Spinning a Person Does Not Constitute Unlawful Imprisonment​

The Second Department determined that grabbing a woman by the waist, spinning her around and releasing her did not amount to unlawful imprisonment:

…[T]he evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crime of unlawful imprisonment in the second degree (see Penal Law § 135.05). At the fact-finding hearing, the complaining witness testified that the appellant grabbed her by the waist and spun her around, and that, when she ordered him to release her, he immediately complied. This evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant “restrict[ed] a person’s movements intentionally and unlawfully in such manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commence[d] or in a place to which [s]he ha[d] been moved, without consent and with knowledge that the restriction [was] unlawful” (Penal Law § 135.00; see Penal Law § 135.05…).  Matter of Terry JP, 2013 NY Slip Op 03844, 2nd Dept, 5-29-13

 

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Contract Provision Protected Contractee from Damages for Delay Caused by Regulators​

In a full-fledged opinion by Justice Mazzarelli, the First Department determined, among many other contract-issues, that delays allegedly caused by regulators (re: asbestos-removal) were included in the contract provision which insulated the contractee from delay-related damages:

“A clause which exculpates a contractee from liability to a contractor [Bovis] for damages resulting from delays in the performance of the latter’s work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally”…. However, such a clause may be disregarded under certain recognized exceptions, including one for delays that are “uncontemplated” …. Delays are not considered uncontemplated when they “are reasonably foreseeable, arise from the contractor’s work during performance, or . . . are mentioned in the contract” …. Further, a party seeking to invoke any of the exceptions to the general rule that no damages for delay clauses are enforceable bears a heavy burden … .

Here, Bovis failed to carry its heavy burden. The contract specifically anticipated the possibility that the involvement of regulators would delay the process. Again, Bovis expressly acknowledged that it assumed the “risk of all regulatory and other Governmental Authority delays.” Certainly this lifted the no damages for delay clause out of the exception for uncontemplated delays. There is no basis for Bovis to argue that by alleging that the extent of the regulatory delays was extreme and unprecedented it stated a claim for delay damages. As this Court has stated in finding a no damages for delay clause enforceable, “[W]hile the conditions themselves may not have been anticipated, the possibility, however unlikely, of their arising was contemplated and addressed by the parties in their agreement” … .  Bovis Lend Lease (LMB), Inc v Lower Manhattan Dev Corp, 2013 NY Slip Op 03804, 1st Dept, 5-28-13

CONSTRUCTION CONTRACT

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Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial​

The First Department determined that a retainer agreement for work “up to” a trial in a divorce action precluded the law firm from recovering any fees for the trial.  To cover those fees a second retainer agreement was required:

The plain language of the retainer states that the law office’s representation of Blisko includes work leading “up to” a trial, “but not including an actual trial.” Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer …. Law Off of Sheldon Eisenberger v Blisko, 2013 NY Slip Op 03802, 1st Dept,. 5-28-13

 

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Town Failed to Demonstrate It Did Not Create Dangerous Condition—Summary Judgment in Favor of Town Denied—Exception to Written Notice Requirement​

The Second Department determined, in a slip and fall case, the town did not demonstrate (in support of its motion for summary judgment) that it did not create the alleged dangerous condition (an allegedly inadequate cover on a catch basin):

If one of the recognized exceptions applies, written notice [of a defect] is not required…. Here, the plaintiff clearly alleged in her pleadings that the Town’s construction of the catch basin was faulty in that an inadequate cover was installed on the catch basin. Consequently, the Town was required to address that issue satisfactorily as part of its initial burden on its motion for summary judgment…. The Town failed to establish, prima facie, that it had not created the dangerous condition by placement of an inadequate cover on the catch basin; in this respect, a defendant does not establish its entitlement to summary judgment merely by pointing out gaps in the plaintiff’s case …. In the absence of the required showing, the Town’s motion was properly denied, without regard to the sufficiency of the plaintiffs’ papers submitted in opposition….  Giaquinto v Town of Hempstead, 2013 NY Slip Op 03814, 2nd Dept, 5-29-13

 

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