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THE COURT PARKING LOT WHERE PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS DEEMED TO BE THE FUNCTIONAL EQUIVALENT OF A SIDEWALK; THEREFORE THE STATUTE REQUIRING WRITTEN NOTICE OF A DANGEROUS SIDEWALK CONDITION AS A PREREQUISITE FOR COUNTY LIABILITY APPLIED; THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant county’s motion for summary judgment in this trip and fall case should have been granted. Plaintiff allegedly tripped over a section of rebar protruding from a concrete island in a court parking lot. Although parking lots are not explicitly mentioned in the statute requiring written notice of a dangerous condition as a prerequisite for the county’s liability, the Second Department held that the parking lot served the function of a sidewalk and therefore was subject to the written notice requirement:

The County has a prior written notice statute which provides, in relevant part, that “‘[n]o civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk . . . unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk [is given] . . . [and s]uch written notice shall specify the particular place and nature of such defective, unsafe, dangerous or obstructed condition . . . [and that n]otice required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney'” … . * * *

The County demonstrated … that its prior written notice statute applied here because the concrete island with the protruding metal “served the same functional purpose as a sidewalk” … . The County further demonstrated, prima facie, that it lacked prior written notice of the alleged defect.  Sanchez v County of Nassau, 2023 NY Slip Op 06270, Second Dept 12-6-23

Practice Point: Here the statute required written notice of a dangerous condition on a sidewalk before the county could be liable for a slip or trip and fall. The plaintiff tripped in a county parking lot. The parking lot was deemed the functional equivalent of a sidewalk, triggering the written-notice requirement.

 

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THE UNDERWRITING GUIDELINES DID NOT SUPPORT THE UNDERWRITER’S CLAIM THAT THE LIFE INSURANCE POLICY WOULD NOT HAVE BEEN ISSUED IF THE COMPANY HAD BEEN AWARE OF PLAINTIFF’S DECEDENT’S HEART CONDITION; THEREFORE THE INSURANCE COMPANY DID NOT DEMONSTRATE, AS A MATTER OF LAW, THAT PLAINTIFF’S DECEDENT MADE A MATERIAL MISREPRESENTATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurance company’s motion for summary judgment in this breach of contract action should not have been granted. The insurance company alleged plaintiff’s decedent misrepresented his medical condition when applying for the term life insurance policy eight months before his death. The insurance company failed to demonstrate, as a matter of law, that plaintiff’s decedent made a material misrepresentation:

“To establish materiality as a matter of law, an insurer must present clear and substantially uncontradicted documentation concerning its underwriting practice, such as underwriting manuals, bulletins, or rules pertaining to similar risks, which show that it would not have issued the same policy if the correct information had been disclosed in the application … . …

Although the defendant’s chief underwriter testified at his deposition that the defendant would not have issued the subject policy to the decedent at the same premium rate had he disclosed the extent of his heart conditions, the underwriting guidelines submitted by the defendant do not state that the heart conditions which the decedent failed to disclose must be assessed at a higher premium … . Ruiz v First Invs. Life Ins. Co., 2023 NY Slip Op 06269, Second Dept 12-6-23

Practice Point: Here the underwriting guidelines did not support the insurance company’s claim that it would not have issued plaintiff’s decedent’s life insurance policy had it been aware of his heart condition. Therefore the company did not demonstrate, as a matter of law, that plaintiff’s decedent made a material misrepresentation when applying for the policy.

 

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DEFENDANT IN THIS MURDER CASE MADE SERIOUS REQUESTS FOR NEW COUNSEL WHICH WERE SUMMARILY DENIED WITHOUT AN INQUIRY; DEFENDANT’S RIGHT TO COUNSEL WAS VIOLATED; NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the judge should not have summarily dismissed defendant’s serious request for new counsel without making an inquiry and factual findings. Defendant’s right to counsel was violated:

In 2017, the defendant was charged by indictment with murder in the second degree, among other crimes. While the matter was pending, the defendant submitted to the Supreme Court a writing, dated December 24, 2018, in which he claimed that he had had no conferences or meetings with his assigned counsel, that counsel had failed to appear in court on several control dates, that there had been a complete breakdown in communication between the defendant and counsel, and that counsel’s omnibus motion contained numerous factual inaccuracies. The defendant also requested a six-week adjournment to attempt to secure representation from a particular attorney who purportedly had agreed to represent the defendant.

At a pretrial proceeding on January 4, 2019, the Supreme Court summarily denied the defendant’s application without making any inquiry. During a subsequent appearance, in June 2019, the defendant read a lengthy statement in which he recounted that his prior application was denied and listed his reasons for not wanting to be represented by his assigned counsel. * * *

… Supreme Court’s conduct in summarily denying the defendant’s application for an adjournment, without conducting any inquiry, and telling him that the court would not relieve assigned counsel and that his alternative was to represent himself pro se, violated the defendant’s right to counsel …. People v Scott, 2023 NY Slip Op 06261, Second Dept 12-6-23

Practice Point: A serious request for new counsel should not be summarily denied without an inquiry. Here defendant was denied his right to counsel by the judge’s failure to address his request. A new trial before a different judge was ordered.

 

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THE DISMISSAL OF THE COMPLAINT DID NOT NULLIFY THE COUNTERCLAIMS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the dismissal of the complaint did not nullify the counterclaims for which discovery had been demanded:

… Supreme Court should not have denied, as academic, the [plaintiffs’] cross-motions pursuant to CPLR 3211(a)(7) to dismiss the counterclaims and to compel the defendants to comply with certain discovery demands. “A cause of action contained in a counterclaim . . . shall be treated, as far as practicable, as if it were contained in a complaint” (CPLR 3019[d] …). “Thus, dismissal of the . . . complaint did not, in itself, extinguish the [defendants’] counterclaims,” which were independent of the causes of action asserted in the complaint … . Banschick v Johnson, 2023 NY Slip Op 06231, Second Dept 12-6-23

Practice Point: Here the dismissal of the complaint should not have been deemed to render the counterclaims academic. Causes of action in counterclaims should be treated as if they were in a complaint.

 

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THE JUDGE IN THIS SORA RISK-LEVEL PROCEEDING DID NOT MAKE DETAILED FINDINGS OF FACT, REQUIRING REMITTAL; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, IN PART BECAUSE COUNSEL DID NOT ARGUE FOR A DOWNWARD DEPARTURE (THIRD DEPT).

The Third Department, reversing County Court’s level-three SORA risk-assessment, noted that the judge failed to set forth all of the relevant findings of fact and determined defense counsel was ineffective. Defense counsel was not aware that youthful offender adjudications can be considered by the SORA court and defense counsel failed to argue for a downward departure. The departure would have been warranted because defendant, who was 17 at the time, had been charged with a misdemeanor based on having sex with his girlfriend:

Failure to comply with the statutory mandate to make detailed findings on the record would alone require that the matter be remitted to County Court … . * * *

The only argument advanced by defendant’s counsel at the SORA hearing was a challenge to the assessment of 30 points under risk factor 9, on the basis that a youthful offender adjudication should be precluded in assessing defendant’s sex offender classification. That argument, however, was devoid of merit … , and demonstrated counsel’s unfamiliarity with existing and applicable case law … . * * *

… [Counsel] did not request a downward departure from the presumptive risk level three classification. The crime underlying the youthful offender adjudication was the class A misdemeanor of sexual misconduct … , stemming from defendant, who had just turned 17, having sexual intercourse with his girlfriend, who was about two months younger. Downward departure has been found appropriate where there is a “relatively slight age difference between [the] defendant and the victim [and] undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age” … . Notwithstanding facts and case law that could support a reasonable argument for a downward departure here, counsel failed to make such a request. In our view, the foregoing establishes that defendant was deprived of the effective assistance of counsel … . People v Wilcox, 2023 NY Slip Op 06175, Third Dept 11-30-23

Practice Point: The judge in a SORA risk-level proceeding is required to make detailed findings of fact.

Practice Point: Defense counsel in a SORA risk-level proceeding is ineffective if counsel is not aware youthful offender adjudications can be considered by the SORA court.

 

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THE BOARD’S REVERSAL OF THE WORKERS’ COMPENSATION LAW JUDGE’S FINDING CLAIMANT HAD NOT MADE A WILLFUL MISREPRESENTATION WAS BASED ON SPECULATION AND SURMISE (THIRD DEPT).

The Third Department, reversing (modifying) the Worker’s Compensation Board, determined the Board’s finding that claimant made a willful misrepresentation was based upon speculation and surmise:

… [T]he Board reversed the WCLJ, who had found “no evidence of a wi[l]lful misrepresentation with the intent to deceive either the Board or the carrier or anyone [who] has an interest.” The Board’s contrary determination relied in part upon what it characterized as a discrepancy between claimant’s testimony during two different appearances. In 2015, during a brief appearance to find jurisdiction and set the matter for trial, claimant’s attorney asked her whether she was “suing any third party for injuries,” and she responded, “Yes.” Her attorney then immediately asked, “Only this claim?” to which she also replied, “Yes.” The WCLJ interjected, “We have to ask to see if there is a Supreme Court action.” Claimant’s attorney then asked about the date of the next hearing[*3], the WCLJ stated a time and expected duration and the employer’s attorney is recorded as having added, “Case was not even filed.” The WCLJ then directed that the record be held, and an off-record discussion took place, after which the appearance concluded. In 2016, claimant was asked during a hearing whether she had sued anyone, and she repeatedly denied having done so. When questioned about the foregoing in 2021, she explained that the 2016 denial was based upon her belief that, because she was no longer pursuing her third-party action, it did not constitute bringing a lawsuit.

The Workers’ Compensation Board characterized claimant’s 2015 testimony as “confirm[ing] that she was suing a third party.” It noted the significance of the inconsistency between that purported confirmation and her subsequent denials, discredited her 2021 explanation that she denied having sued anyone because she lacked understanding of the law and concluded that she willfully made false statements in violation of Workers’ Compensation Law § 114-a.

… [W]e find the Board’s characterization of claimant’s 2015 testimony to be based upon speculation and surmise … . Matter of Salvia v Nutritional Frontiers LLC, 2023 NY Slip Op 06177, Third Dept 11-30-23

Practice Point: Where the Workers’ Compensation Board reverses a finding by the Workers’ Compensation Law Judge based solely upon surmise and speculation, the court will reverse the Board.

 

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THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) DID NOT APPLY RETROACTIVELY; THEREFORE THE STATUTE CONFERRED IMMUNITY ON DEFENDANT NURSING HOME RE: COVID-19 PRECAUTIONS; PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE ADEQUACY OF THE COVID PRECAUTIONS TAKEN BY DEFENDANT NURSING HOME (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ceresia, determined that the Emergency or Disaster Treatment Protection Act (EDTPA), which conferred immunity on nursing homes during the COVID-19 pandemic, precluded the COVID-related negligence action against defendant nursing home. The Third Department ruled that the repeal of the EDTPA should not be applied retroactively. Therefore the statute was in effect at the relevant time. The Third Department further held that the evidence of proper COVID-19 precautions offered by the nursing home was not refuted by the plaintiff:

… [T]he ultimate repeal of the EDTPA contained no express indicator of retroactivity — rather, the Legislature simply stated that the repeal would “take effect immediately” … . * * *

Turning to plaintiff’s argument that retroactivity is appropriate because the repeal was remedial in nature, “[c]lassifying a statute as ‘remedial’ does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law” … . Based upon all of the foregoing, and noting that the retroactive application of the repeal of the EDTPA would merely punish healthcare providers “for past conduct they cannot change — an objective [that has been] deemed illegitimate as a justification for retroactivity” … we hold that the repeal of the EDTPA was not retroactive … . Whitehead v Pine Haven Operating LLC, 2023 NY Slip Op 06180, Third Dept 11-30-23

Practice Point: The repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) should not be applied retroactively to remove immunity related to COVID precautions conferred on a nursing home during the life of the statute.

 

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THE PROSECUTOR REFUSED TO PARTICIPATE IN THE MURDER TRIAL ARGUING THAT THE JUDGE’S PRECLUSION OF EVIDENCE MADE THE PROSECUTION IMPOSSIBLE; IN THE PROSECUTOR’S ABSENCE AT TRIAL, THE JUDGE DISMISSED THE INDICTMENT PURSUANT TO CPL 290.10; THE JUDGE DID NOT HAVE AUTHORITY TO DISMISS THE INDICTMENT; WRIT OF PROHIBITION GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, issued a writ of prohibition against the respondent County Judge nullifying the order dismissing the murder indictment against defendant. The petitioner was the district attorney (DA) who was prosecuting defendant. The DA disagreed with certain preclusion orders issued by the Judge and argued the prosecution of the defendant was rendered impossible by the preclusion of evidence. The DA refused to participate in the trial. At trial, in the DA’s absence, the Judge dismissed the indictment pursuant to Criminal Procedure Law (CPL) 290.10. Because such a dismissal requires a trial as a prerequisite, and because there was no trial, the Third Department held the Judge did not have the authority to dismiss the indictment:

Upon a criminal defendant’s motion, a court may dismiss any count of an indictment on the basis that the trial evidence was not legally sufficient to establish the charged crime (see CPL 290.10 [1] [a]). Critically, a court is empowered to do so “[a]t the conclusion of the [P]eople’s case or at the conclusion of all the evidence” (CPL 290.10 [1]). Based on this language, a dismissal under CPL 290.10 contemplates, at the very least, that a prosecutor actually present a case. This did not occur in the underlying criminal proceeding. Petitioner did not deliver an opening statement, did not call witnesses and did not tender documentary evidence to be received by respondent. Without a case by petitioner, respondent could not dismiss the indictment under CPL 290.10 … . In essence, the dismissal of the indictment was due to the default of petitioner, which respondent lacked authority to do … . Matter of Clegg v Rounds, 2023 NY Slip Op 06181, Third Dept 11-30-23

Practice Point: If the prosecutor refuses to participate in the trial, the judge cannot dismiss the indictment pursuant to CPL 290.10. The statute requires a trial as a prerequisite. Here there was no trial. The prosecutor’s petition for a writ of prohibition against the judge was granted. The “trial” was nullified.

 

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THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments:

County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The March 2022 order states that at a hearing held on an unspecified date, the court “set out its findings of fact . . . which support the assignment of points for each risk factor.” No such findings are set forth in the order and, if placed on the record at the hearing, no hearing transcript is contained in the record. Absent any record findings of fact and conclusions of law by the court, this Court is precluded from conducting a meaningful appellate review of the assessment of points and defendant’s risk level classification. As such, the matter must be remitted … . Further, to the extent that defendant raises direct constitutional challenges to certain portions of Correction Law § 168, as set forth in his memorandum submitted to County Court, the record is devoid of any indication that the Attorney General was timely notified of such challenges or whether the court ruled on any of the issues raised. In view of the foregoing, County Court’s March 30, 2022 order is reversed and the matter remitted for further proceedings. People v Kelsey, 2023 NY Slip Op 06186, Third Dept 11-30-23

Practice Point: The Correction Law requires that an order in a SORA risk-level proceeding include findings of fact.

Practice Point: Where a defendant raises constitutional arguments in a SORA risk-level proceeding, the Attorney General must be notified.

 

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THE DENIAL OF PETITIONER-INMATE’S RIGHT TO CALL WITNESSES REQUIRED ANNULMENT OF ONE MISBEHAVIOR DETERMINATION AND EXPUNGEMENT OF ANOTHER (THIRD DEPT).

The Third Department annulled one misbehavior determination and expunged another because petitioner was denied his right to call witnesses:

… [The Hearing Officer improperly denied petitioner’s request to call as a witness one of the correction officers who was present during the search of petitioner’s cell and endorsed the second misbehavior report (see 7 NYCRR 254.5). Given the passage of time, respondent does not seek a rehearing and requests that the determination in relation to the second misbehavior report be annulled.

… [T]he determination in relation to the first misbehavior report must also be annulled on the ground that petitioner was improperly denied his right to call a witness. The record reflects that petitioner, who denied the assault and claimed he was being set up, requested to call as a witness the alleged victim of the assault. Although there was a discussion at the hearing that the alleged victim would have to agree to testify, there is no indication that the alleged victim refused to testify or that the Hearing Officer made any effort to procure him as a witness. “[W]here the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the [H]earing [O]fficer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the [incarcerated individual’s] right to call witnesses as provided in the regulations” (… see 7 NYCRR 254.5). As we view the unexplained outright denial of a witness commensurate to the denial of petitioner’s constitutional right to call witnesses, expungement rather than remittal for a new hearing is the appropriate remedy … . Matter of Diaz v Annucci, 2023 NY Slip Op 06187, Third Dept 11-30-23

Practice Point: In prison misbehavior proceedings the erroneous or unexplained denial of an inmate’s right to call witnesses is reversible error.

 

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