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NONE OF THE ESPINAL EXCEPTIONS APPLIED TO THE DEFENDANT FIRE SAFETY AND SECURITY CONTRACTOR IN THIS SLIP AND FALL CASE; THEREFORE THE CONTRACTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED; THE ISSUE WAS PROPERLY CONSIDERED ON APPEAL, DESPITE THE FAILURE TO RAISE IT BELOW, BECAUSE IT CONCERNED A QUESTION OF LAW (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant fire safety and security contractor’s motion for summary judgment in this slip and fall case should have been granted. It was alleged the steps where plaintiff fell were in disrepair and were not sufficiently illuminated, which had nothing to do with defendant-contractor’s duties. Therefore the contractor did not “launch and instrument of harm,” plaintiff could not have relied upon the contractor to make the area safe, and the contractor’s contract with the owner did not displace the owner’s safety-related responsibilities:

Unity, the building’s fire safety and security contractor, should have been granted summary judgment. Even assuming that Unity’s contractual fire safety inspection duties extended to the identification of premises defects such as the broken step involved in plaintiff’s mishap, any failure by Unity to identify that defect would not have constituted the affirmative launching of a force or instrument of harm within the meaning of Espinal … . The same is true of any failure by Unity to call attention to insufficient lighting of the stairway. Further, Unity’s contract did not completely displace the duty of the owner or managing agent to maintain the safety of the premises … . Nor is there any evidence that plaintiff detrimentally relied on Unity to perform its contractual duties. Accordingly, on this record, none of the Espinal conditions for holding a premises contractor liable for an injury to a third party are satisfied with respect to Unity. Diamond v TF Cornerstone Inc., 2023 NY Slip Op 06473, First Dept 12-19-23

Practice Point: Here none of the Espinal exceptions applied such that the contractor could be held liable for the slip and fall.

Practice Point: Although the “Espinal” issue was not raised below, it could be raised on appeal because it presented a question of law.

 

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BECAUSE THE NONPARTY WITNESS, WHO WAS PLAINTIFF’S ASSAILANT, HAD A COMMON NAME AND WAS HOMELESS, PLAINTIFF WAS ENTITLED TO DISCOVERY OF THE WITNESS’S DATE OF BIRTH AS AN AID IN LOCATING HIM; PLAINTIFF WAS NOT ENTITLED TO THE WITNESS’S SOCIAL SECURITY NUMBER HOWEVER (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to the birth date of a nonparty witness who was plaintiff’s assailant’s in the underlying event. Because the witness was homeless and had a common name, the witness’s date of birth would help in locating him. Plaintiff was not entitled to the witness’s social security number, however:

Supreme Court should have granted plaintiff’s request that defendants provide the date of birth of the nonparty witness. “[O]rdinarily the names and addresses of witnesses are a proper subject of disclosure” … . The identity of an active participant in an incident is discoverable because “‘the witness was so closely related to the [incident] that his testimony [became] essential in establishing [its] happening'” … .

Plaintiff seeks disclosure of the date of birth and social security number of the nonparty witness, who was also plaintiff’s assailant in the incident underlying the litigation. Defendants have already disclosed that plaintiff’s assailant, who has a remarkably common name, was homeless. Accordingly, the ordinary disclosure of “names and addresses” is unlikely to assist plaintiff in locating the witness. Disclosure of his date of birth may assist plaintiff in identifying and locating the witness. Defendants are not required to provide the witness’s social security number, however, as courts have recognized a heightened level of confidentiality with respect to an individual’s social security number. Lane v City of New York. 2023 NY Slip Op 06480, First Dept 12-19-23

Practice Point: Here plaintiff was entitled to discovery of a witness’s date of birth as an aid to locating him because the witness was homeless and had a very common name. However plaintiff was not entitled to the witness’s social security number which is protected by a higher level of confidentiality.

 

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QUESTIONS OF FACT WHETHER INJURY FROM A WOODEN CONCRETE FORM FALLING OVER WERE COVERED BY LABOR LAW 240(1) AND 241(6) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised questions of fact about whether injury caused by a 50-poind wooden concrete form falling over was covered by Labor Law 240(1) and 241(6):

… [P]laintiff raised triable issues of fact as to whether plaintiff’s injuries flowed directly from the application of the force of gravity to the form, whether the weight of the form could generate a significant amount of force as it fell and whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute … . …

Plaintiff also raised triable issues as to his Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23-2.2(d), inasmuch as that section provides that stripped concrete forms “shall be promptly stockpiled or removed from areas in which persons are required to work or pass.” The evidence indicated … that the concrete forms were scattered about the garage area following concrete work performed in the garage two weeks earlier by plaintiff’s employer, the cement contractor. Lopez v 106 LPA LLC, 2023 NY Slip Op 06481, First Dept 12-19-23

Practice Point: Here a wooden form weighing 50 pounds, which was leaning against a wall, fell over on plaintiff. There were questions of fact whether this gravity-related event was covered by Labor Law 240(1), and whether violation of the Industrial Code provision requiring the stacking of concrete forms was covered by Labor Law 241(6).

 

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HERE THE LEVEL-THREE STOP AND FRISK FOR A SUSPECTED FIREARM WAS VALID; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, affirming the denial of defendant’s suppression motion, explained the criteria for a level-three stop and frisk for a suspected firearm:

In assessing the propriety of a level-three stop and frisk of a defendant for a suspected firearm the court must consider three factors: First, whether there was proof of a describable object or of describable conduct that provides a reasonable basis for the police offer’s belief that the defendant had a gun in his possession … .

A stop and frisk for a firearm is justifiable in cases where the officer identifies the outline of a pistol in the defendant’s pocket … . Here, the officer described in detail the distinct pistol shape of the bulge in defendant’s jeans pocket, including the orientation of the barrel and pistol grip, that he observed over the course of approximately a minute. Pursuant to the first Prochilo factor, these observations constituted proof of a “describable object” that “provide[d] a reasonable basis for the police officer’s belief that the defendant had a gun in his possession,” justifying the officer’s immediate frisk of defendant’s pocket (Prochilo, 41 NY2d at 761).

The second Prochilo factor is whether the manner of the officer’s approach to the defendant and the seizure of the gun was reasonable under the circumstances (41 NY2d at 761). Following the observation of a gun-shaped bulge in a defendant’s pocket, an officer is generally justified in conducting a minimally invasive pat-down of the bulge to confirm that it is indeed a firearm … . Here, after observing the pistol-shaped bulge in defendant’s right rear jeans pocket, the officer conducted a pat-down of the bulge and confirmed that it was a gun. … Upon confirming that the object was a firearm, the officer had probable cause to effectuate an arrest and reasonably tackled defendant to the ground. People v Bowman, 2023 NY Slip Op 06494, First Dept 12-19-23

Practice Point: This decision explains the criteria for a valid level-three stop and frisk for a suspected firearm.

 

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY; THE DEFENDANT MORTGAGE COMPANY IS ESTOPPED BY CPLR 213(4)(A) FROM ASSERTING THE STATUTE OF LIMITATIONS FOR A FORECLOSURE HAS NOT EXPIRED; PLAINTIFF’S COMPLAINT SEEKING DISCHARGE AND CANCELLATION OF THE MORTGAGE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined (1) the Foreclosure Abuse Prevention Act (FAPA) applies retroactively; and (2) because the defendant mortgage company is estopped by CPLR 213(4)(b) from asserting the six-year statute of limitations for foreclosure had not expired, plaintiff’s RPAPL 1501(4) complaint (seeking cancellation and discharge of the mortgage) should not have been dismissed:

Having concluded that FAPA applies retroactively, we must next consider whether defendant is estopped under CPLR 213(4)(b) from asserting that the statute [*6]of limitations for the commencement of a mortgage foreclosure action has not expired because the debt secured by the mortgage was not validly accelerated in connection with the prior foreclosure action. CPLR 213(4)(b)’s potent estoppel bar will not be imposed, and a defendant will be free to assert that the debt secured by the mortgage was not validly accelerated in connection with a prior action, if, and only if, the prior action was dismissed based on an express judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.

Here, defendant is estopped from asserting that the statute of limitations on a cause of action to foreclose on the mortgage has not expired. An action to foreclose on the mortgage was previously commenced and dismissed. Defendant is not saved by the limited exception afforded by CPLR 213(4)(b) because Supreme Court, in dismissing the foreclosure action, did not make an express determination that the debt secured by the mortgage was not validly accelerated. Rather, the court dismissed the foreclosure action on the ground that the court lacked personal jurisdiction over the defendants therein … . Genovese v Nationstar Mtge. LLC, 2023 NY Slip Op 06477, First Dept 12-19-23

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) applies retroactively. Here the defendant mortgage company was estopped by CPLR 214(4)(b) from asserting the six-year statute of limitations for a foreclosure action had not expired.

 

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THE CONTEMPT AND GAG ORDERS ISSUED IN THIS TRIAL WHERE FORMER PRESIDENT TRUMP IS THE DEFENDANT ARE NOT APPROPRIATELY CHALLENGED BY A DEMAND FOR A WRIT OF PROHIBITION OR AN ARTICLE 78 REVIEW; MOTIONS TO VACATE THE ORDERS SHOULD BE MADE; ANY DENIAL OF THE MOTIONS COULD THEN BE APPEALED (FIRST DEPT).

The First Department determined demand for a writ of prohibition (CPLR 7803(2)) and an article 78 review (CPLR 7801(2)) of Contempt Orders and Gag Orders issued by the judge in this trial (where former President Donald Trump is the defendant) were not the proper procedural vehicles. The proper procedure would be to move the vacate the orders and then appeal the denial of the motion:

In determining whether to exercise the court’s discretion and grant a writ of prohibition, several factors are to be considered, including “the gravity of the harm which would be caused by an excess of power” and “whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity” … . Here, the gravity of potential harm is small, given that the Gag Order is narrow, limited to prohibiting solely statements regarding the court’s staff … . Further, while the Gag Order and Contempt Orders were not issued pursuant to formal motion practice, they are reviewable through the ordinary appellate process (see CPLR 5701[a][3] …). For these reasons, a writ of prohibition is not the proper vehicle for challenging the Gag Order and Contempt Orders.

As to the first cause of action, CPLR 7801(2) clarifies that article 78 review is not permitted in a civil or criminal action where it can be reviewed by other means, “unless it is an order summarily punishing a contempt committed in the presence of the court” (CPLR 7801[2]). The Contempt Orders here were not issued “summarily,” nor was the contempt “committed in the presence of the court.” To the extent there may have been appealable issues with respect to any of the procedures the court implemented in imposing the financial sanctions, the proper method of review would be to move to vacate the Contempt Orders, and then to take an appeal from the denial of those motions. Matter of Trump v Engoron, 2023 NY Slip Op 06461, First Dept 12-14-23

Practice Point: The contempt and gag orders issued in this trial of former president Donald Trump cannot be challenged by a demand for a writ of prohibition or an Article 78 review. The proper procedure is to move to vacate the orders and appeal any denial.

 

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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN PROVIDING DISCOVERY; THE CERTIFICATE OF COMPLIANCE WAS INVALID AND DID NOT STOP THE SPEEDY-TRIAL CLOCK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the People did not exercise due diligence in providing discovery to the defense. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. The prosecution was time-barred:

In 2019, the New York State Legislature enacted sweeping reforms that expanded and restructured disclosure obligations in criminal cases, effective at the start of 2020 (see L 2019, ch 59, § 1, pt LLL). This appeal concerns a new requirement set forth in CPL article 245 that the People file a certificate of compliance (COC) with their statutory disclosure obligations (see CPL 245.50 [1], [3]). * * *

Due diligence is a mixed question of fact and law, and thus we consider whether the fact finder’s conclusions are supported by the record … . Viewed under the proper legal standard, there is no record support for the conclusion of the courts below that prior to filing the initial COC, the People exercised due diligence and made reasonable inquiries to identify mandatory discovery items relating to this case.

The belated disclosure here consisted of routinely produced disclosure materials—the creation of at least one of which was mandated by law … . The absence of such significant items of disclosure was readily noticed by the defense, which then brought it to the attention of the People and the court. The prosecution had two opportunities to establish that they had exercised due diligence, but failed to do so. At the appearance on May 26th, in which defense counsel first called attention to the missing items, the prosecutor simply asserted that he had “checked” without any elaboration as to what efforts were made to verify whether there was any outstanding discovery or whether the disclosure requested by the defense—which was in the possession of the People (see CPL 245.20 [2])—actually existed. The prosecutor speculated that such disclosure items did not exist and had not been created, and otherwise stated in a cursory fashion that all discovery had been turned over. When the parties appeared on July 6th following Bay’s CPL 30.30 motion, the People again made no mention of any efforts taken to ascertain the existence of discovery materials before the COC was filed, nor did they explain why some discovery was initially missing or how it came into their possession. People v Bay, 2023 NY Slip Op 06407, CtApp 12-14-23

Practice Point: Here the People did not exercise due diligence in complying with their discovery obligations. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. If the People can demonstrate they exercised due diligence in providing discovery, the COC will not be deemed improper.

 

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THE COUNTY, UNDER THE EMINENT DOMAIN PROCEDURE LAW (EDPL), HAD THE POWER TO CONDEMN AN AREA ADJACENT TO AN OFFICE BULIDING FOR USE AS A PARKING LOT; THE ALLOWED PURPOSE UNDER THE EDPL WAS “COMMERCIAL:” THE ARGUMENT THAT THE PURPOSE WAS “HEALTHCARE,” NOT “COMMERCIAL,” BECAUSE THE BUILDING WOULD HOUSE DOCTORS’ OFFICES WAS REJECTED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Oneida County Industrial Development Agency (OCIDA) properly exercised its power under the Eminent Domain Procedure Law (EDPL) to obtain property be used for as parking for an office building, as well as public parking. The the fact that the building would be used for doctor’s offices did not negate the “commercial” purpose of the building within the meaning of the EDPL. Petitioner’s argued the building served a “healthcare,” not a “commercial” purpose and therefore was not subject to the condemnation power of the OCICA:

General Municipal Law § 858 (4) grants industrial development agencies the power to “acquire by purchase, grant, lease, gift, pursuant to the provisions of the [EDPL], or otherwise and to use, real property or rights or easements therein necessary for its corporate purposes.” “The purposes of [an industrial development] agency are to promote, develop, encourage[,] and assist in the acquiring, constructing, reconstructing, improving, maintaining, equipping[,] and furnishing industrial, manufacturing, warehousing, commercial, research, renewable energy[,] and recreation facilities” … . The question here is whether OCIDA appropriately determined that taking the property was necessary for a “commercial” purpose.

As a general matter, a parking facility used by the customers of a profit-making business plainly has a “commercial” purpose. Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 2023 NY Slip Op 06406. CtApp 12-14-23

Practice Point: The Eminent Domain Procedure Law (EDPL) allows land to be condemned by a county industrial development agency for “commercial” but not “healthcare” purposes. Here the county properly condemned land next to an office building for parking, despite the fact that doctors would be tenants in the office building.

 

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PETITIONER PATHOLOGIST IS BEING SUED BY AN INMATE WHO ALLEGES MISDIAGNOSIS OF A BIOPSY; BECAUSE THE REQUEST FOR THE BIOPSY CAME FROM A DOCTOR WHO WAS UNDER CONTRACT WITH THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS), AND NOT DIRECTLY FROM DOCCS, THE STATE IS NOT OBLIGATED TO DEFEND OR INDEMNIFY THE PATHOLOGIST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Appellate Division, determined the state did not have an obligation to defend or indemnify the petitioner, a pathologist, who concluded the lump under an inmate’s arm was benign. Dr. Cotie, a physician who provided services to inmates under a contract with the Department of Corrections and Community Supervision (DOCCS), had taken a biopsy and had sent it to petitioner for analysis. One year after the “benign” finding, the inmate was diagnosed with Hodgkin’s lymphoma. Because the request for the biopsy analysis did not come directly from DOCCS, pursuant to the language in the Correction Law, the state was not required to defend or indemnify the petitioner pathologist:

Under Correction Law § 24-a, the provisions of Public Officers Law § 17 are made applicable to “any person holding a license to practice a profession. . . who is rendering or has rendered professional services authorized under such license while acting at the request of the department or a facility of the department in providing health care and treatment or professional consultation to incarcerated individuals of state correctional facilities” … . The Attorney General has interpreted this language to mean that the State’s obligation to defend and indemnify applies only where there has been an express request by DOCCS for the services of a particular provider—i.e., a formal arrangement or understanding made in advance between DOCCS and the healthcare professional. * * *

Petitioner performed pathology services on the biopsy sample as a result of his contract with the hospital, not because he was acting at DOCCS’ request or executing any public responsibility associated with the care or treatment of incarcerated individuals. Matter of Jun Wang v James, 2023 NY Slip Op 06405, CtApp 12-14-23

Practice Point: Unless DOCCS directly and expressly requests that a doctor provide a service for an inmate, the state will not indemnify or defend the doctor in a lawsuit by an  inmate. A request from a doctor under contract with DOCCS will not trigger indemnification or defense.

 

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HERE A WITNESS TO THE SHOOTING IDENTIFIED THE DEFENDANT AS THE SHOOTER FOR THE FIRST TIME AT TRIAL; UNDER THE FACTS, THE DEFENDANT WAS NOT PREJUDICED; THE COURT OFFERED GUIDANCE ON HOW TO HANDLE OR AVOID THE SITUATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a comprehensive dissenting opinion, affirming the Appellate Division, determined defendant was not prejudiced by a witness to the shooting who identified him as the shooter for the first-time at trial. The opinion takes note of the suggestiveness of a first-time identification at trial and offers instructions on how the situation should be handled and/or avoided. Here, however, the the defendant was aware of the witness and did not request any identification procedures, surveillance video captured both the shooter and the victim, the victim knew the shooter, and the victim identified the shooter. The court noted that any error was clearly harmless:

Concerning identifications made at trial, this Court and many others have recognized the inherent suggestiveness of the traditional in-court identification procedure, with a single defendant sitting at a table with defense counsel … . As with an unduly suggestive pretrial identification, it will often be immediately clear to the witness who the accused defendant is, especially if the witness has a rudimentary knowledge of courtroom seating arrangements. The principal danger is that, faced with the pressures of testifying at trial, the witness will identify the defendant as the perpetrator simply because the defendant is sitting in the appropriate spot, and not because the witness recognizes the defendant as the same person that they observed during the crime. Inasmuch as the traditional courtroom seating arrangement may itself suggest to the witness who should be identified, trial courts must be vigilant to ensure that where a witness has not previously identified the defendant in a properly conducted pretrial identification procedure such as a photo array or lineup, the suggestiveness of a first-time, in-court identification procedure does not create an unreasonable danger of a mistaken identification. People v Perdue, 2023 NY Slip Op 06404, CtApp 12-14-23

Practice Point: Here, under the unique facts of the case, defendant was not prejudiced by allowing a witness to identify him as the shooter for the first time at trial. The court offered guidance on how the situation should be handled and/or avoided.

 

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