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IN THIS SLIP AND FALL CASE, EVIDENCE THE AREA WHERE PLAINTIFF FELL WAS INSPECTED “MORE THAN AN HOUR” BEFORE AND EVIDENCE OTHERS WERE IN THE AREA AT THE TIME OF THE FALL DID NOT ELIMINATE QUESTIONS OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital did not demonstrate it did not have constructive notice of the wet substance on the floor alleged to have cause plaintiff’s slip and fall. Evidence that the corridor in question was inspected “more than an hour” before the slip and fall and evidence others were in the corridor when plaintiff fell did not eliminate questions fact about whether the hospital had constructive notice of the condition:

… [T]he defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the alleged slippery condition. The defendant’s evidence that the corridor was inspected more than an hour before the accident was insufficient to establish that the condition did not exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy the condition. The plaintiff’s deposition testimony, submitted by the defendant in support of its motion, established that there were at least three nurses and a doctor present in the corridor at the time of her fall … . Contrary to the defendant’s contention, the plaintiff’s deposition testimony that she did not notice anything on the floor before she fell was insufficient to establish that the condition would not have been discoverable upon a reasonable inspection … . Croake v Flushing Hosp. & Med. Ctr., 2023 NY Slip Op 06723, Second Dept 12-27-23

Practice Point: In a slip and fall, evidence the area of the fall was inspected “more than an hour” before the fall does not demonstrate the defendant did not have constructive notice of the condition.

 

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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE RAISED QUESTIONS OF FACT WHETHER THE RELEASE WAS SIGNED BY PLAINTIFF UNDER UNFAIR CIRCUMSTANCES; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED UPON THE RELEASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff in this traffic accident case had raised questions of fact about when the release signed by plaintiff under unfair circumstances:

… [P]laintiff’s allegations were sufficient to raise questions of fact as to whether the release was signed by the plaintiff under circumstances that indicate unfairness, and whether it was not “fairly and knowingly” made … . The plaintiff averred, among other things, that shortly after the accident, an insurance representative for the defendants called him “repeatedly;” that he had difficulty understanding the defendants’ representative due to a language barrier; that the defendants’ representative, who had him sign the release to obtain money for medical bills, never explained that the document he signed was a release or had the legal effect of the release; and that the plaintiff was not represented by an attorney at the time he signed the release. Moreover, the plaintiff raised questions of fact as to whether there was mutual mistake as to the nature of the injuries sustained by plaintiff from the alleged accident … . Wei Qiang Huang v Llerena-Salazar, 2023 NY Slip Op 06772, Second Dept 12-27-23

Practice Point: Unfair circumstances surrounding the signing of a release, short of fraud, can invalidate it.

 

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THE PROSECUTOR’S REASONS FOR STRIKING THREE BLACK PROSPECTIVE JURORS WERE EITHER NOT RELEVANT TO THE CASE OR INACCURATE AND WERE DEEMED PRETEXTUAL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the prosecutor’s reasons for striking three Black prospective jurors were pretextual. The proffered reasons were deemed irrelevant and/or inaccurate. The court also noted that the prosecutor improperly told the jury the defendant was guilty:

Supreme Court improperly determined that the facially race-neutral reasons proffered by the prosecutor during step two were not pretextual. With respect to prospective juror no. 6, the prosecutor stated that since this prospective juror “lives on church property,” there were concerns “as to religious reasons, sympathy reasons.” However, during voir dire, this prospective juror was never questioned concerning her religious affiliation, or whether her living situation would make her more sympathetic to the defendant … . …

… “[T]he prosecutor did not offer any explanation for how [two of the] juror[s’] employment [situations] [working with mentally ill people] related to the factual circumstances of the case or the qualifications of the juror[s] to serve” … . People v Vera, 2023 NY Slip Op 06758, Second Dept 12-27-23

Practice Point: Here the prosecutor’s reasons for striking three Black prospective jurors were not relevant to the facts of the case and/or were inaccurate. The Second Department deemed the reasons pretextual and ordered a new trial.

 

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THE FEDERAL CRIME WHICH WAS USED TO ENHANCE DEFENDANT’S SENTENCE WAS NOT A FELONY IN NEW YORK; DEFENDANT’S SECOND FELONY ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, noted that federal conviction did not constitute a felony in New York for the purpose of enhanced sentencing:

… [T]he defendant was improperly adjudicated as a second felony offender based on his federal conviction of assault with a dangerous weapon in aid of racketeering, because that predicate crime does not require actual injury as one of its elements (see 18 USC § 1959[a][3]) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Odom, 2023 NY Slip Op 06756, Second Dept 12-27-23

Practice Point: If a federal crime does not meet the definition of a felony in New York it cannot be used to enhance defendant’s sentence. Here the federal crime did not include actual injury as one of its elements and therefore did not constitute a felony in New York. Defendant’s second felony offender adjudication was vacated.

 

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IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN THE OUTLINE OF A GUN UNDER DEFENDANT’S SWEAT PANTS WAS DEEMED INCREDIBLE AS A MATTER OF LAW; THE PEOPLE THEREFORE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” AT THE SUPPRESSION HEARING; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s possession-of-a-weapon conviction, determined the People did not meet their burden of going forward at the suppression hearing because the police officer’s (Desposito’s) testimony was not credible. The court went on to say that, even if Desposito’s testimony were true, the evidence did not provide reasonable suspicion for the street stop. Defendant was walking on the sidewalk. Desposito was in a moving car. Desposito claimed he saw the outline of a gun under defendant’s sweat pants and told defendant to stop. Defendant ran, was captured, and a gun was found. Because Desposito was in a moving car and his view of defendant was obscured by parked cars and another pedestrian, the court found his testimony insufficient to meet the “going forward” burden of proof:

… [T]he People failed to establish the legality of the police conduct in the first instance, as Desposito’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Desposito’s testimony that he was able to observe an “L-shaped object” beneath the defendant’s sweatpants as the police vehicle drove past the defendant strains credulity and defies common sense … . …

… [E]ven if Desposito’s testimony is credited as true, his observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Leon, 2023 NY Slip Op 06754, Second Dept 12-27-23

Practice Point: If a police officer’s suppression-hearing testimony attempting to demonstrate reasonable suspicion for a street stop is incredible as a matter of law, the People fail to meet their “burden of going forward” and the motion to suppress must be granted.

 

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DEFENDANT’S MOTION PAPERS AND EXHIBITS RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE PLED GUILTY IF HE WERE AWARE HE COULD BE DEPORTED BASED ON THE PLEA; THEREFORE THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, remitting the matter, determined the judge should not have denied defendant’s motion to vacate his plea without holding a hearing. Defendant alleged he would not have pled guilty if he had been informed of the deportation consequences:

According to the defendant’s motion and exhibits, he allegedly immigrated to the United States at approximately 17 years of age, resided here for approximately 26 years, was employed in the United States, and had two children here. Under the circumstances of this case, the defendant’s allegations in his motion that he would not have pleaded guilty and would instead have gone to trial had the court warned him of the possibility of deportation, were sufficient to raise an issue of fact in that regard … . Therefore, the County Court erred in deciding the defendant’s motion to vacate his plea without a hearing. People v Hernandez, 2023 NY Slip Op 06752, Second Dept 12-27-23

Practice Point: If a defendant, in a motion to vacate his plea, raises a question of fact about whether he would have pled guilty if he had know he could be deported, the judge should not deny the motion without holding a hearing.

 

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THE JUDGE HAD A COURT OFFICER COMMUNICATE WITH THE JURY ABOUT A SUBSTANTIVE MATTER OUTSIDE OF THE DEFENDANT’S PRESENCE; DEFENSE COUNSEL DID NOT OBJECT; CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined the judge should not have communicated with the jury outside of the defendant’s presence and should not have delegated the court’s duty to a court officer. When the jury sent out the verdict sheet, the judge noticed a mistake. The jury had indicated “guilty on all counts,” including count 2, but the jury should have been instructed to skip count 2 if it found defendant guilty of count 1. The judge sent a court officer to the jury to explain the mistake. The jury came back with a verdict of guilty on count 2. Defense counsel did not object to the procedure:

“[A] defendant has the right to be present during all critical stages of a trial and . . . this includes the right to be present when the jury is given instructions or information by the court” … . “Equally true is that the court may not delegate to a nonjudicial staff member its authority to instruct the jury on matters affecting their deliberations” … . While “[a] Trial Judge may properly authorize a court officer to speak to a deliberating jury when the subject of the communication is administerial[,] . . . a Trial Judge who authorizes a court officer to communicate with a jury on matters which are not administerial not only errs, but commits an error so grave as to warrant reversal even though the defendant’s attorney might have consented to the occurrence of the error” … .

… Supreme Court improperly delegated a judicial duty to a nonjudicial staff member at a critical stage of the proceedings. … [T]he instruction was not a mere ministerial matter. Under the circumstances, where the jury was deliberating and had expressed confusion about the relationship between counts one and two, the court’s rejection of the verdict sheet and the instruction to correct it was an instruction regarding the jury’s deliberation … . Thus, the defendant was absent during a critical stage of the trial, and the court improperly delegated a judicial duty to a nonjudicial staff member … . People v Fulton, 2023 NY Slip Op 06750, Second Dept 12-27-23

Practice Point: It is reversible error for a judge to communicate with the jury outside the defendant’s presence.

Practice Point: It is reversible error for a judge to allow a court officer to communicate with the jury about a substantive matter.

 

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THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE (MADE BEFORE ISSUE WAS JOINED) AND SHOULD NOT HAVE BEEN GRANTED; ALTHOUGH NOT PRESERVED THE ISSUE COULD BE HEARD ON APPEAL BECAUSE IT PRESENTED A QUESTION OF LAW THAT COULD NOT HAVE BEEN AVOIDED IF RAISED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment which was brought before issue was joined should not have been granted. Although the issue was not preserved for appeal, the Second Department heard the appeal because it presented a pure question of law that could not have been avoided if it was brought up below:

“A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” … . Since H Mart’s motion was made prior to joinder of issue, the Supreme Court should not have granted that branch of the motion which was for summary judgment on the cause of action to recover damages for breach of contract alleging failure to procure insurance … . “Although this argument is raised for the first time on appeal, we reach the argument because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture” … . Maurizaca v CW Highridge Plaza, LLC, 2023 NY Slip Op 06734, Second Dept 12-27-23

Practice Point: A motion for summary judgment will be denied if made before issue is joined.

Practice Point: An issue that is not preserved for appeal may be decided on appeal if it presents a pure question of law which could not have been avoided if it had been raised below.

 

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A FACTUAL NEXUS BETWEEN THE ENDANGERING THE WELFARE OF A CHILD CONVICTION AND THE ALLEGATIONS IN THE NEGLECT PETITION WAS NOT DEMONSTRATED; FAMILY COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT ON THE NEGLECT ALLEGATIONS BASED ON THE CRIMINAL CONVICTION (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the record was not sufficient to support summary judgment on the neglect allegations based upon respondent’s plea to endangering the welfare of a child:

… [A] criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . “It is well settled that [t]he party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . * * *

“[I]t is not enough to merely establish the existence of the criminal conviction; the petitioner must prove a factual nexus between the conviction and the allegations made in the neglect petition” … . Matter of Clarissa F. (Rex O.), 2023 NY Slip Op 06680, Fourth Dept 12-22-23

Practice Point: Here a factual nexus between the endangering the welfare of a child conviction and the allegations of neglect was not demonstrated. Summary judgment on the neglect allegations based solely on the criminal conviction should not have been granted.

 

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THE STRICT LIABILITY THEORY APPLIES HERE WHERE PLAINTIFF WAS KICKED BY DEFENDANT’S HORSE; QUESTIONS OF FACT ABOUT WHICH HORSE KICKED PLAINTIFF AND PLAINTIFF’S AWARENESS OF THE RISK PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined questions of fact precluded summary judgment in this action stemming from defendant being kicked by plaintiff’s horse. There were questions of fact about which of plaintiff’s horses kicked the plaintiff and whether plaintiff was aware of the risk of approaching the horse. Plaintiff was familiar with the horses and defendant had called plaintiff because two of the horses were fighting. The court rejected the argument that negligence, as opposed to strict liability, was the applicable theory:

Agriculture and Markets Law § 108 (7) classifies horses as domestic animals, and ” ‘[w]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule’ . . . of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities” … (quoting Bard v Jahnke, 6 NY3d 592, 599 [2006] …) . Contrary to plaintiff’s contention, the exception to that rule set forth in Hastings v Sauve (21 NY3d 122, 125-126 [2013]) does not apply here, inasmuch as the horse did not stray from defendant’s property .. . Contrary to plaintiff’s further contention, he may not maintain a negligence claim against defendant under the reasoning of Hewitt v Palmer Veterinary Clinic, PC (35 NY3d 541 [2020]). In that case, the Court of Appeals held that the Bard rule, set forth above, does not apply to a veterinary clinic … . The Court reasoned that the Bard “line of precedent concerning animal owners [was not] directly implicated” in Hewitt … . By contrast, inasmuch as defendant was the owner of the horse that injured plaintiff, the Bard rule of strict liability applies here. Shuttleworth v Cory, 2023 NY Slip Op 06635, Fourth Dept 12-22-23

Practice Point: Strict liability, not negligence, controls in this horse-kick case. The recent Court of Appeals applications of a negligence theory to injury caused by animals do not apply here.

 

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