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EVEN THOUGH PLAINTIFF BICYCLIST ADMITTED ROLLING THROUGH A BIKE-PATH STOP SIGN BEFORE ENTERING THE INTERSECTION, THERE REMAINED QUESTIONS OF FACT ABOUT WHETHER DEFENDANT DRIVER FAILED TO SEE WHAT WAS TO BE SEEN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant-driver’s motion for summary judgment in this intersection bicycle-car collision case should not have been granted. Although plaintiff-bicyclist acknowledged he did not completely stop at the bike-path stop sign before entering the intersection, there were questions of fact whether defendant driver (Butler) failed to see what was to be seen:

… [P]laintiff’s admission that he came to a “rolling stop” at the stop sign, which amounts to a violation of Vehicle and Traffic Law § 1172 (a) and establishes some degree of fault on his part. Nevertheless, that fact is not dispositive as to whether he was the sole proximate cause of the accident … . To this point, Butler’s testimony suggests that no other vehicles were at the intersection prior to her turning left and that her visibility down the bike path was limited to approximately 20 feet, due in part to a building, trees and bushes obstructing her view. However, our review of the photographs of the intersection contained in the record casts doubt on that account, as a lengthy portion of the bike trail both preceding and after the stop sign located on said trail appears visible from Butler’s vantage point both at the light and after she commenced the left turn. Whether plaintiff should have been visible to Butler is further unresolved by the time frames relative to Butler commencing the turn and the time to impact as well as the varying accounts from plaintiff, Butler and the police report specific as to how far Butler had traveled into the intersection before the collision took place … . Ruberti v Butler, 2024 NY Slip Op 02358, Third Dept 5-2-24

Practice Point: In this intersection bicycle-car collision case, plaintiff-bicyclist’s failure to come to a complete stop at the bike-path stop sign did not establish he was the sole proximate cause of the accident.. There were questions of fact about whether defendant driver failed to see what was there to be seen.

 

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COMPLAINT ALLEGING THE NEW YORK CITY PUBLIC SCHOOL SYSTEM DISCRIMINATES AGAINST STUDENTS OF COLOR AND SEEKING INJUNCTIVE RELIEF SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint alleging the New York City public school system discriminates against Black and Latinx students and seeking injunctive relief was justiciable and stated valid causes of action. Therefore the complaint, which had been dismissed, is now reinstated. The opinion is comprehensive and far too detailed to fairly summarize here:

Plaintiffs allege that State and City policies create a “racialized” admission pipeline. According to plaintiffs, the pipeline begins with a single standardized test for the City’s Gifted & Talented (G&T) programs taken by children as young as four-years-old. The G&T test, plaintiffs assert, disproportionately benefits “privileged” white students and their “in-the-know” parents, who have the “navigational capital” to understand the admissions process and the economic capital to pay for expensive test preparation. The G&T programs, plaintiffs allege, provide superior academic preparation, which allows primarily white and Asian students to continue through the pipeline to academically screened middle and high schools, relegating Black and Latinx students to unscreened schools, often in poorly maintained buildings with limited extracurricular programs. The end of the pipeline, or “zenith” as plaintiffs describe it, is admission to one of eight New York City specialized high schools based on the results of the Special High School Admissions Test (the SHSAT).* * *

The pipeline, plaintiffs claim, is designed to exclude Black and Latinx students from the City’s prime educational opportunities. According to plaintiffs, the State and the City “intentionally adopted” and “for decades have intentionally retained—with no pedagogical basis—testing-based sorting that they know excludes students of color from equal educational opportunities.” This knowledge was acquired, plaintiffs allege, “through decades of experience and reflected in [defendants] own admissions” including the knowledge of the public school system’s “racist character and outcomes.” Despite this knowledge, plaintiffs allege that the State and the City “intentionally refuse to dismantle . . . its racialized channeling system.” IntegrateNYC, Inc. v State of New York, 2024 NY Slip Op 02369, First Dept 5-2-24

Practice Point: Here Supreme Court’s conclusion that the suit seeking injunctive relief from discriminatory education policies and procedures in the New York City public school system was not “justiciable” was rejected.

 

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DEFENDANT’S ALLEGATION PLAINTIFF CAME TO A SUDDEN STOP IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT DEFENDANT’S LIABILITY; HOWEVER A QUESTION OF FACT REMAINED CONCERNING DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this rear-end collision case should have been awarded summary judgment on liability, but defendant’s comparative negligence affirmative defense properly survived dismissal. Defendant alleged that plaintiff made a sudden stop, which was not enough to raise a question of fact on defendant’s liability:

… [P]laintiff established her entitlement to judgment as a matter of law on the issue of liability through her own affidavit, which demonstrated, prima facie, that the defendant’s vehicle struck the plaintiff’s vehicle in the rear while the plaintiff’s vehicle was stopped on the LIE due to traffic conditions … . In opposition, the defendant failed to raise a triable issue of fact. The defendant’s averments in his affidavit that the plaintiff’s vehicle made a sudden stop and that the plaintiff had told the defendant after the accident that she had stopped her vehicle to allow another car merge into the lane ahead of her, do not provide a nonnegligent explanation for striking the plaintiff’s vehicle …

However, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law dismissing the defendant’s affirmative defense alleging comparative negligence on the ground that the defendant’s negligence was the sole proximate cause of the accident. The plaintiff’s affidavit failed to provide sufficient details to demonstrate, prima facie, that she was not comparatively at fault in causing the accident … . Fischetti v Simonovsky, 2024 NY Slip Op 02302, Second Dept 5-1-24

Practice Point: A defendant in a rear-end collision case will not escape summary judgment on liability by alleging plaintiff came to a sudden stop.

 

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DEFENDANT NYC DEPARTMENT OF EDUCATION DID NOT OWE A DUTY TO A SCHOOL ADMINISTRATOR WHO WAS ATTACKED BY A STUDENT IN A SCHOOL HALLWAY; THERE WAS NO “SPECIAL RELATIONSHIP” BETWEEN DEFENDANTS AND PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the absence of a special relationship between plaintiff high school administrator and defendant NYC Department of Education precluded recovery for an attack on the administrator by a student in the school’s hallway:

“Absent the existence of a special relationship between the defendants and the . . . plaintiff, liability may not be imposed on the defendants for a breach of a duty owed generally to persons in the school system and members of the public” … . To succeed on a cause of action sounding in negligence, the plaintiff must establish that the defendants owed her a special duty of care … .

A plaintiff may demonstrate that a special relationship exists by showing, among other things, that the municipality “voluntarily assume[d] a duty that generate[d] justifiable reliance by the person who benefits from the duty,” or that “the municipality assume[d] positive direction and control in the face of a known, blatant and dangerous safety violation” … . A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following: “‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking'” … .

… The defendants’ submissions demonstrated that they did not voluntarily assume a duty toward the plaintiff. The defendants did not make any promises to the plaintiff or take any actions regarding security protocols in the school that amounted to an affirmative undertaking of protection by them on her behalf, nor could the plaintiff have justifiably relied on any such actions … . Notably, the plaintiff testified at her deposition that she had no reason to fear the student who allegedly assaulted her. The plaintiff also testified that, prior to the incident, the student had never made any threats toward her and she never asked the school to provide her with protection from the student. Moreover, the defendants did not take positive direction and control in the face of a known, blatant, and dangerous safety violation … . Villa-Lefler v Department of Educ. of the City of N.Y., 2024 NY Slip Op 02343, Second Dept 5-1-24

Practice Point: Absent a “special relationship’ between plaintiff school administrator and defendant NYC Department of Education, defendant is not liable for an attack on the administrator by a student in a school hallway.

 

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THE NEARLY $10 MILLION VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS SUPPORTED BY SUFFICIENT EVIDENCE OF PROXIMATE CAUSE; IT WAS ALLEGED DEFENDANT DOCTOR SHOULD HAVE SENT PLAINTIFF’S DECEDENT TO THE EMERGENCY ROOM AND THE FAILURE TO DO SO PLAYED A ROLE IN PLAINTIFF’S DECEDENT’S SUICIDE THE NEXT DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nearly $10 million verdict should not have been set aside on the ground the evidence of proximate cause was insufficient. Plaintiff alleged defendant doctor (Strange) should have sent plaintiff’s decedent to the emergency room the day before plaintiff’s decedent committed suicide. The matter was remitted for consideration of other grounds for setting aside verdict:

… Supreme Court erred in granting that branch of Strange’s motion which was to set aside the verdict on the issue of proximate cause and for judgment as a matter of law dismissing the complaint insofar as asserted against him, since the jury reasonably concluded, based on the evidence presented at trial, that Strange’s alleged departures were a proximate cause of the decedent’s death. The plaintiff’s expert witness testified that the decedent’s suicide was preventable and that a referral to the emergency room would have allowed the decedent to be admitted to the hospital. Such testimony was sufficient to allow a reasonable person to conclude that it was more probable than not that Strange’s conduct, under these circumstances, diminished the decedent’s chance of a better outcome … . Shouldis v Strange, 2024 NY Slip Op 02340, Second Dept 5-2-24

Practice Point: Proximate cause in a medical malpractice case is demonstrated if the doctor’s conduct “diminished the … chance of a better outcome.”

 

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AFTER PLAINTIFF’S POST-NOTE DEPOSITION SUBPOENA FOR THE NONPARTY WITNESS WAS QUASHED, PLAINTIFF OBTAINED A VOLUNTARY STATEMENT FROM THE NONPARTY WITNESS; OBTAINING THE STATEMENT WAS A PROPER METHOD OF “INFORMAL DISCOVERY” (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff properly conducted “informal discovery” by obtaining a voluntary statement from a nonparty witness after plaintiff’s post-note deposition subpoena for the witness was quashed:

Supreme Court granted defendant’s motion to quash the untimely, post-note deposition subpoena plaintiff served on nonparty witness Harris-Aikens, and to preclude plaintiff from “examining or otherwise taking any sworn testimony from” Harris-Aikens (the December Order), and suspended disclosure pursuant to CPLR 3103(b). …

… [T]he Harris-Aikens witness statement did not constitute “disclosure of the particular matter in dispute” prohibited by CPLR 3103(b). The statement was not an examination or other sworn testimony explicitly prohibited by the December Order, and was not otherwise an enumerated “disclosure device” under CPLR 3102(a) … . Rather, obtaining the witness statement was plaintiff’s proper exercise of ex parte, informal discovery, which the Court of Appeals has long recognized as a permissible and invaluable avenue by which litigants prepare for trial … . Everett v Equinox Holdings, Inc., 2024 NY Slip Op 02276, First Dept 4-30-24

Practice Point: Obtaining a voluntary statement from a nonparty witness here did not violate the court order quashing a deposition subpoena for the same witness. The voluntary statement was a proper form of “informal discovery.”

 

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THERE WAS NO RECORD DEFENSE COUNSEL WAS INFORMED OF THE JURY NOTE AND NO RECORD THE JUDGE RESPONDED TO THE NOTE, A MODE OF PROCEEDINGS ERROR; ALTHOUGH THE NOTE REFERRED ONLY TO ONE COUNT, THE THREE COUNTS WERE FACTUALLY CONNECTED REQUIRING A NEW TRIAL (FIRST DEPT). ​

The First Department, reversing defendant’s conviction and ordering a new trial, determined the absence of a record indicating defense counsel was notified of a note from the jury, or even that the judge responded to the note, was a mode of proceedings error. The People’s argument that the note addressed only one count of the indictment and the convictions on the other counts should survive was rejected. The nature of the jury’s question was relevant to all counts:

The fourth note stated: “We the jury request to hear the judge’s reading of count 1, including definitions and detail. Further, can you please confirm if it is up to our determination to decide if something is considered as “course of conduct” and “act”? As written on the verdict sheet, count 1 states “engaging in a course off conduct,” we want to confirm if this is a typo or not.” * * *

When an O’Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with ‘due regard’ for the facts of the case, the nature of the error, and the ‘potential for prejudicial impact on the over-all outcome’ … .

Here, the three counts of the indictment were alleged to arise from a course or repetition of conduct in violation of the order of protection reasonably perceived as threatening to the victim’s safety (count 1), through means both electronic/written (count 2) and telephonic (count 3). Thus, given the underlying factual relationship between the crimes, defendant is entitled to a new trial … . People v Jamison, 2024 NY Slip Op 02286, First Dept 4-30-24

Practice Point: If the record is silent about whether counsel was notified of a jury note and whether the judge even responded to the note, that is a mode of proceedings error.

Practice Point: Although the jury note related to only one of the three counts, the convictions on the other two counts could not survive because all the counts were factually connected.

 

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HERE THE COURT OF APPEALS CLARIFIED ITS DEFINITION OF “TESTIMONIAL” EVIDENCE; A FORM DOCUMENT USED TO COLLECT PEDIGREE INFORMATION FROM EVERY NYC ARRESTEE IS NOT “AN OUT-OF-COURT SUBSTITUTE FOR TRIAL TESTIMONY,” I.E., THE FORM DOCUMENT IS NOT “TESTIMONIAL” AND CAN BE INTRODUCED AT TRIAL AS A BUSINESS RECORD WITHOUT THE TESTIMONY OF THE CREATOR OF THE DOCUMENT; HERE THE DOCUMENT INDICATED DEFENDANT LIVED IN THE BASEMENT AND WAS USED AT TRIAL TO PROVE HE CONSTRUCTIVELY POSSESSED A WEAPON FOUND IN THE BASEMENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissenting opinion, determined a document created by the Criminal Justice Agency (CJA), which provides pretrial services in NYC, was not “testimonial” in nature and therefore could be introduced in evidence as a business record without affording the defendant the opportunity to confront the creator of the document. The document was created during an interview of the defendant. The defendant was charged with possession of a weapon found in the basement. The CJA document indicated defendant lived in the basement and was introduced at trial to prove his constructive possession of the weapon:

… CJA interviews “nearly all individuals arrested” in New York City “to make a pretrial release recommendation to the court” … . In interviewing arrestees to determine their suitability for pretrial release, CJA employees ask them questions regarding community ties and warrant history, including an arrestee’s address, how long they have lived there, their employment status, whether they expect anyone at their arraignment, their education, and other relevant queries. The CJA employee records the answers to these questions on a standardized form titled “Interview Report.” The employee also verifies the information provided by the arrestee with a third person, whose contact information the CJA employee obtains from the arrestee, and records that verification in a separate section of the form. The CJA employee then gives the completed form, including a recommendation on whether the arrestee is suitable for release, to the arraignment judge, the prosecutor, and defense counsel. * * *

We now clarify that in ascertaining whether out-of-court statements are testimonial, courts should inquire, as the U.S. Supreme Court has instructed, “whether in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony’ ” … . When that standard is met, the statement should be deemed testimonial for purpose of the Confrontation Clause. * * *

We find it significant that a CJA interview report is routinely prepared for all arrestees in New York City. The information collected is the same in every case, regardless of the particular facts or the elements of the relevant crime: the interviewer collects a predetermined set of pedigree information from the defendant and makes a recommendation to the court as to the defendant’s suitability for pretrial release … . People v Franklin, 2024 NY Slip Op 02227 CtApp 4-25-24

Practice Point: The Court of Appeals clarified and brought up-to-date its definition of “testimonial” evidence. A document is testimonial if its primary purpose is to create an out-of-court substitute for trial testimony. Here a form document filled out during an intake interview of every NYC arrestee which collects pedigree information was not testimonial, i.e., it was not created as a substitute for trial testimony.  Therefore the document could be admitted at trial as a business record without the need for testimony by the creator of the document.

 

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PLAINTIFF BROUGHT AN EMPLOYMENT DISCRIMINATION AND RETALIATION ACTION IN FEDERAL COURT; DEFENDANTS WERE AWARDED SUMMARY JUDGMENT IN THE FEDERAL ACTION; BECAUSE THE FEDERAL COURT DID NOT EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF’S NYS AND NYC HUMAN RIGHTS LAW CAUSES OF ACTION, PLAINTIFF PURSUED THEM IN STATE COURT; HOWEVER ALL THE STATE ISSUES HAD BEEN ADDRESSED IN THE FEDERAL ACTION; COLLATERAL ESTOPPEL PRECLUDED THE STATE ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive dissenting opinion, determined that the employment discrimination and retaliation claims brought by plaintiff adjunct professor against New York University under the NYS and NYC Human Rights Law were precluded by the doctrine of collateral estoppel. Plaintiff had brought a federal action based upon the same facts which was dismissed, but the District Court declined to exercise supplemental jurisdiction over the state and city Human Rights Law causes of action. Plaintiff therefore could pursue those causes of action in state court. But because all the issues had been sufficiently dealt with by the federal court, the collateral estoppel doctrine was triggered:

The courts below properly applied our established principles of collateral estoppel in the context of the unique requirements of the City Human Rights Law. Collateral estoppel “bars the relitigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment” and so “the determination of an essential issue is binding in a subsequent action, even if it recurs in the context of a different claim” … . If there is identity of issues between the prior determination and the instant litigation, and the precluded party had a full and fair opportunity to contest the prior determination, collateral estoppel applies and the prior determination is binding in the subsequent action … . Russell v New York Univ., 2024 NY Slip Op 02226, CtApp 4-25-24

Practice Point: In an employment discrimination and retaliation case brought in federal court, a plaintiff can ask the federal court to exercise supplemental jurisdiction over New York State and New York City Human Rights Law causes of action. Where, as here, the federal court declines to exercise supplemental jurisdiction, the plaintiff may pursue those actions in state court. Here, because plaintiff lost the federal case, and all the issues raised in the state case were addressed in the federal case, the doctrine of collateral estoppel precluded the state action.

 

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A GAP IN THE CHAIN OF CUSTODY OF THE DRUGS SEIZED FROM DEFENDANT AND A DISCREPANCY IN THE DESCRIPTIONS OF THE BAG CONTAINING THE DRUGS DID NOT RENDER THE DRUGS INADMISSIBLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined a gap in the chain of custody and a discrepancy in the descriptions of the evidence did not render the evidence (white powder in plastic bags) inadmissible. Officer Lin, who seized the evidence, noted a rip in the larger plastic bag. But Osorio, the criminologist who analyzed the white powder, did not notice a rip in the larger bag:

… [T]he record indicates that the gap spanned, at most, only a few hours overnight and “[a]t all times, the drugs apparently remained safely under police control” in an identifiable location at a precinct station … . Officer Lin testified that she placed the evidence inside an envelope used to voucher drugs, and that the only other person in the office at the time was an administrative officer who was tasked with safeguarding such evidence. In leaving the evidence at the station to resume her patrol, Officer Lin followed a procedure intended to reduce opportunities for error and misconduct … . When Officer Lewis arrived to voucher the evidence, “the drugs were found precisely where they were supposed to be” … . * * *

Defendant also focuses on Osorio’s testimony that she did not “see” or write in her worksheet that there were rips in the plastic bags recovered from defendant, which he characterizes as irreconcilable with Officer Lin’s testimony about the torn condition of the larger bag. Defendant ignores that the bags were admitted into evidence at trial and the factfinder was expressly encouraged to examine them to confirm Officer Lin’s testimony. If the larger bag was torn in some way, Osorio’s mere failure to notice that defect would not support an inference of tampering. Because the bag is not part of the record on appeal, it is impossible to discern the existence or extent of any discrepancy, let alone conclude that it rendered the drugs inadmissible…. . People v Baez, 2024 NY Slip Op 02225, CtApp 4-25-24

Practice Point: Here the drugs seized from the defendant were left overnight in a room at the precinct before a voucher was created, and the officer who seized the drugs noticed a rip in the larger plastic bag but the criminologist who analyzed the drugs did not notice such a rip. Despite these issues, the chain of custody was sufficiently proven to render the drugs admissible in evidence.

 

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