The Third Department upheld a finding by the New York State Division of Human Rights that petitioner, the owner of a restaurant, had created a hostile work environment and had retaliated against two female employees by firing them after they filed sexual harassment complaints. Matter of West Taghanic Diner, II, Inc v NYS Division of Human Rights, 514133, 3rd Dept 4-4-13
The Third Department determined that a pit bull had acted in self-defense when attacked by another dog which broke free of its leash and, on that basis, reversed the “dangerous dog” finding. The Third Department noted that a “dangerous dog” finding should not be based solely on the breed of the dog:
The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that “‘there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal'” … . Matter of People … v Shanks, 514029, 3rd Dept 4-4-13
DOG BITE
In holding that a second summary judgment motion which addressed deficiencies in the first summary judgment motion should not have been entertained, the Third Department wrote:
…[W]e agree with plaintiff that the Town’s summary judgment motion should not have been considered. “‘[M]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause'” …. Here, the Town’s second motion for summary judgment was made solely upon the added affidavit of its Highway Superintendent, which was submitted to address the deficiencies in the Town’s proof as outlined by our prior decision. However, such affidavit was not new evidence, as no reason was given why it could not have been submitted with the initial motion … . For the same reason, this evidence could not have been a valid basis to grant renewal of the first summary judgment motion … . We discern no valid purpose for allowing a successive summary judgment motion that is based solely upon a party’s belated attempt to remedy its inadequate initial proffer, without any valid explanation as to why the additional evidence was not offered in the first instance. Keating v Town of Burke, 515400, 3rd Dept 4-4-13
In a full-fledged opinion by Justice Renwick, the First Department upheld the denial of defendant’s suppression motions. After hearing gun shots police officers approached the defendant. After defendant answered a couple of questions he “began to place his hand in his back pocket.” At that point, the officer grabbed defendant’s arm and told defendant he wanted to frisk the defendant before allowing him to reach in his pockets. As the officer began to frisk the defendant, the defendant ran and was brought the ground. A firearm, still warm, was taken from the defendant’s back pocket. Written statements subsequently given by the defendant were suppressed by the trial court because of a Miranda violation. A videotaped statement, made seven hours after the tainted written statements, was deemed admissible:
Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant’s videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a “definite, pronounced break in the interrogation” … . People v Davis, 2012 NY Slip Op 02337, 6129, 9270, 1st Dept 4-4-13
The Third Department determined the “prompt outcry” exception to the hearsay rule applied to a very young victim who complained about the incident after several days:
Under the prompt outcry rule, “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place” … . “‘[P]romptness is a relative concept dependent on the facts — what might qualify as prompt in one case might not in another'” …. Here, the sexual contact occurred over a weekend during which the victim was in the care of defendant’s mother. The victim returned to his mother’s care on a Sunday and disclosed the events to her on the following Friday. Considering the victim’s young age and the familial relationship between the victim and defendant, we agree with County Court’s determination that the hearsay statements fell within the prompt outcry rule …, and the court provided an appropriate instruction limiting the use of the testimony … . People v Lapi, 104623, 3rd Dept 4-4-13
The Third Department determined the failure to request a jury charge on venue waived any related appellate issue:
Initially, to the extent that defendant contends that the People failed to prove by a preponderance of the evidence … that the underlying crimes occurred within the geographical jurisdiction of Franklin County, we note that “unlike territorial jurisdiction[,] which goes to the very essence of the State’s power to prosecute,” questions regarding geographical jurisdiction or venue are waivable … . Accordingly, inasmuch as defendant failed to request a jury charge on venue, she waived any challenge in this regard … . People v Beauvais, 104590, 3rd Dept 4-4-13
The Third Department determined the following scenario legitimately led to the defendant’s arrest under the DeBour criteria:
The officers arrived at the scene and observed approximately eight people sitting on the steps. As the officers approached the group, one of them – later identified as defendant– abruptly stood up and attempted to enter the building, but could not gain entry because the door was apparently locked. One of the officers followed defendant up the steps, placed a hand on defendant’s shoulder and asked defendant why he was in a hurry. Defendant turned around, shoved the officer, said that he was “past curfew” and, after a brief struggle, ran down the steps and took off running down the street. People v Morris, 104201, 3rd Dept, 4-4-13
STREET STOPS
In reversing a jury verdict in favor of the defendant, the First Department held that a hearsay statement about the cause of the plaintiff’s fall, contained in a hospital report, should not have been presented to the jury:
Generally, admissions not germane to the treatment or diagnosis of a plaintiff’s injuries are not admissible under the business records exception to the hearsay rule … . A hearsay entry in a hospital record as to the cause of an injury may be admissible at trial even if not germane to diagnosis, if the entry is inconsistent with a position taken at trial. However, there must be evidence that connects the party to the entry … .
…[P]laintiff testified that she slipped on a metal bracket protruding from a subway step. The hospital record indicating that she slipped on wet ground should not have been presented to the jury since there was no proper foundation for its admission, inasmuch as it was unclear whether plaintiff was the source of that information … . Indeed, plaintiff testified that she did not tell the orthopedic surgeon that she slipped on a wet surface. The admission of the hospital record thus was not harmless error since it went to the crux of plaintiff’s allegations. [Defendant’s] primary defense was that plaintiff slipped on wet ground, and not from its negligence … . Grant v New York City Tr Auth, 3013 NY Slip Op 02318, 9211, 305841/08, 1st Dept 4-4-13
SLIP AND FALL
The Second Department dismissed a complaint against a law firm for malpractice because the law firm was not in privity with the plaintiffs with respect to the real estate transactions at issue. The law firm represented the defendant in the transactions:
The law firm established, prima facie, its entitlement to judgment as a matter of law dismissing the third and fourth causes of action. In this regard, the law firm submitted evidence demonstrating that it was not in privity with the plaintiffs with respect to the subject transactions. “In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances'” … . Accordingly, the law firm established its entitlement to judgment as a matter of law dismissing the negligence cause of action. Moreover, the law firm submitted evidence demonstrating that it made no material misrepresentations to the plaintiffs …, thus establishing its entitlement to judgment as a matter of law dismissing the fraud cause of action. In opposition, the plaintiffs failed to raise a triable issue of fact … . Therefore, the Supreme Court should have granted that branch of the law firm’s motion which was for summary judgment dismissing the third and fourth causes of action. Zinnanti v 513 Woodward Ave Realty, LLC, 2013 NY Slip Op 02244, 2011-10407, Index No 3092/10, 2nd Dept 4-3-13
A worker on a ship in dry-dock was injured when he fell through an open hole in the floor or deck. He brought an action pursuant to the Labor Law. Although the action was within the jurisdiction of federal maritime law, the Second Department held that the state labor law claims were not preempted by general maritime law:
…[T]here is no real dispute that the present action falls within federal maritime jurisdiction … . Contrary to the contention of the defendants third-party plaintiffs, however, the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not preempted by general maritime law. Under the circumstances of this case, the application of Labor Law §§ 240(1) and 241(6), which are local regulations enacted to protect the health and safety of workers in this state, will not unduly interfere with a fundamental characteristic of maritime law or the free flow of maritime commerce … . Accordingly, the Supreme Court properly denied that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing those causes of action insofar as asserted against the City. Durando v City of New York, 2013 NY Slip Op 02214, 2012-00535, Index No 33753/08, 2nd Dept 4-3-13
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