You are here: / THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE...

Search Results

/ ,

THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).

The Second Department determined, over a comprehensive dissent, that defendant was properly assessed 20 points because his relationship with the 13-year-old victim was deemed to have been established for the primary purpose of victimizing her. The dissent argued there was a pre-existing relationship and, therefore, defendant did not develop the relationship for the purpose of victimization:

… [T]he record indicates that the defendant did not have a long-standing preexisting relationship with the complainant’s parents, and was not involved in the complainant’s life since her infancy. Rather, the defendant had worked with the complainant’s uncle and was invited to the uncle’s house for lunch, where he met the complainant. Thus, this case is readily distinguishable from the circumstances of Cook [29 NY3d at 121]. Contrary to the position of our dissenting colleague, the fact that the defendant’s initial contact with the complainant was unplanned and in person, rather than through the internet, is not determinative with respect to the assessment of points under risk factor 7 based on an offender’s establishment or promotion of a relationship with the victim for the primary purpose of victimization … . The Guidelines, which were created in 1996, do not limit the assessment of points under those circumstances to situations where the offender and the victim initially met online. People v Jony, 2023 NY Slip Op 04674, Second Dept 9-20-23

Practice Point: A long-standing relationship between a defendant and a victim of sexual abuse may demonstrate the relationship was not established for the primary purpose of victimization rendering the assessment of 20 points under risk factor 7 inapplicable. Here the majority concluded there was no such pre-existing relationship, but the dissent made a strong contrary argument.

 

 

/ , , ,

PLAINTIFF WAS ELIGIBLE FOR RELEASE FROM JAIL PURSUANT TO CPL 180.80 BUT WAS KEPT INCARCERATED FOR AN ADDITIONAL 2 1/2 MONTHS; PLAINTIFF’S FALSE IMPRISONMENT AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined plaintiff’s causes of action for false imprisonment and negligence should not have been dismissed. Plaintiff sued the town because he was not released from custody pursuant to Criminal Procedure Law 180.80:

CPL 180.80 “requires the release of individuals being held in pretrial detention pending action of a Grand Jury after 120 or 144 hours of custody unless, among other neutralizing circumstances, an indictment has been voted” … . * * *

The allegation that the defendant detained the plaintiff for an additional 2½ months after it was required to release him pursuant to CPL 180.80 is a very serious one. This Court notes that the defendant does not deny this allegation outright, but instead attempts to shift blame to the plaintiff for what would, if true, be its own grievous error. McKay v Town of Southampton, 2023 NY Slip Op 04664, Second Dept 9-20-23

Practice Point: Here the plaintiff was not released from jail when he was eligible for release pursuant to CPL 180.80. His lawsuit against the town for false imprisonment and negligence should not have been dismissed.

 

/ , ,

IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined plaintiff was entitled to discovery of pre-accident repairs, but not to post-accident repairs:

Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the subject stairway, and a list of all employees and contractors that performed work on the subject stairway, for the period of two years prior to the date of the subject accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of this action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents … .

However, the Supreme Court erred in directing the defendant to disclose such records for the one-year period after the date of the accident. “Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case” … . “An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue” … . Here, there is no issue as to the maintenance and control of the subject stairway … . C.B. v New York City Tr. Auth., 2023 NY Slip Op 04650, Second Dept 9-20-23

Practice Point: Plaintiff in this stairway slip and fall case is entitled to discovery of pre-accident, but not post-accident, repairs.

 

/ , ,

THE COMPLAINT AGAINST THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE GRAVES AMENDMENT; DEFENDANT LESSOR DID NOT DEMONSTRATE THE ALLEGATION THE CAR WAS NEGLIGENTLY MAINTAINED WAS “NOT A FACT AT ALL” (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s cause of action against the lessor of the car involved in the accident (Rallye) should not have been dismissed pursuant to the Graves Amendment. Defendant lessor did not demonstrate the allegation the car was negligently maintained was “not a fact at all:”

“Pursuant to the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” … .

In considering a motion pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Further, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it,” dismissal should not eventuate … .

Here, contrary to the defendants’ contention, an affidavit from Rallye’s employee, who averred that Rallye’s vehicle was in good working condition at the time it allegedly was rented to Orphanides [the defendant driver], did not show that the plaintiff’s allegation of negligent maintenance on the part of Rallye was not a fact at all … . Holmquist v Orphanides, 2023 NY Slip Op 04660, Second Dept 9-20-23

Practice Point: In the context of a motion to dismiss, an affidavit stating that the leased car involved in the accident was in good working order will not, pursuant to the Graves Amendment, defeat a complaint which alleges the leased car was negligently maintained  The affidavit does not establish the negligent-maintenance allegation is “not a fact at all.”

 

/ ,

PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE “GOOD CAUSE” FOR AN EXTENSION OF TIME FOR SERVICE OF PROCESS, BUT DID DEMONSTRATE ENTITLEMENT TO AN EXTENSION IN THE “INTEREST OF JUSTICE” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of process in this foreclosure action should have been granted. Although plaintiff did not demonstrate “good cause” for the failure to timely serve, the motion met the criteria for an extension in the interest of justice:

“Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice” … . “Good cause and interest of justice are two separate and independent statutory standards” … . “Good cause requires a showing of reasonable diligence in attempting to effect service” … . “[I]n deciding whether to grant a motion to extend the time for service in the interest of justice, the court must carefully analyze the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter” … . Under the interest of justice standard, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to [the] defendant” … .

Here, the plaintiff failed to demonstrate good cause for an extension of time to serve the defendant under CPLR 306-b. In support of the motion, the plaintiff offered nothing more than the affidavit of service of its process server. While a process server’s affidavit of service creates a presumption of proper service, the Supreme Court had already determined that the defendant presented sufficient evidence to warrant a hearing on the validity of service of process … .

However, the plaintiff established its entitlement to an extension of time to serve the defendant with the summons and complaint in the interest of justice. The plaintiff established that the action was timely commenced, that service was timely attempted and was perceived by the plaintiff to have been made within 120 days after the commencement of the action, and that the plaintiff promptly sought an extension of time to serve the defendant with the summons and complaint after the defendant challenged service on the ground that it was defective. The plaintiff also established that the statute of limitations had expired when the plaintiff made its motion to extend the time to serve, that the plaintiff had a potentially meritorious cause of action, and that there was no identifiable prejudice to the defendant attributable to the delay in service … . Countrywide Home Loans, Inc. v Lyons, 2023 NY Slip Op 04654, Second Dept 9-20-23

Practice Point: If you can’t demonstrate “good cause” for an extension of time for service of process, you still may be entitled to an extension in the “interest of justice.”

 

/ , ,

DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK FOR SPOLIATION OF EVIDENCE; VIDEO OF A FEW SECONDS BEFORE AND AFTER THE FALL WAS PRESERVED, BUT THE REST OF THE VIDEO WAS OVERWRITTEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s answer in this slip and fall case should not have been struck for spoliation of evidence. Defendant preserved video of the slip and fall which happened during a school dance—a few seconds before and after the fall. But the rest of the video was overwritten 21 days after the fall as part of a routine procedure. Defendant did not have notice of a potential lawsuit at the time the video was overwritten:

“‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126′” … . “‘A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” … .

… The plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten … . The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant’s normal business practices.

… [D]efendant’s preservation of only a portion of the surveillance footage does not indicate a culpable state of mind … as the defendant’s representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident consistent with ordinary business practices. The assistant principal’s affidavit was also sufficient to provide the court with a “basis to find that the search for [the surveillance footage] had been a thorough one [and] that it had been conducted in a good faith effort to provide [the surveillance footage] to the plaintiff” … . Similarly, no evidence indicates that the defendant was negligent in failing to preserve the additional surveillance footage … . Moreover, the plaintiff did not demonstrate that the defendant’s failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim … . M.B. v St. Francis Preparatory Sch., 2023 NY Slip Op 04651, Second Dept 9-20-23

Practice Point: After video of the fall and a few seconds before and after the fall was preserved by the defendant, the remainder of the video was overwritten in accordance with usual procedure. Defendant was not on notice of a potential lawsuit when the video was overwritten. In the absence of evidence of bad faith, defendant’s answer should not have been struck for spoliation of evidence.

 

/ , ,

IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST DEPARTMENT NOTED THE INADEQUACY OF THE PROOF PRESENTED BY ASSIGNED COUNSEL AT THE FIRST HEARING AND CONSIDERED “NEW” FACTS WHICH WERE NOT PART OF THE RECORD ON APPEAL (FIRST DEPT). ​

The First Department, reversing Family Court over a detailed and comprehensive dissent, determined mother was entitled to a new hearing on her petition to relocate to North Carolina because her assigned counsel did not adequately present evidence of the financial necessity of the move. The dissent would grant the petition to relocate based on the existing record:

… [A]s the attorney for the child argues on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted by order entered November 15, 2022 and continued by order entered April 20, 2023), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. Specifically, … the mother attests that counsel failed to adequately present evidence of the financial necessity that supports her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that have occurred since the court’s September 6, 2022 order, we reverse the court’s denial of the mother’s petition and remand for a new hearing to determine what is in the child’s best interests … . Although the facts warranting a new hearing are outside the record on appeal, given that changed circumstances have particular significance in child custody matters, we take notice of the new facts to the extent they indicate that the record is no longer sufficient to determine the mother’s relocation petition … . Matter of Emily F. v Victor P., 2023 NY Slip Op 04634, First Dept 9-14-23

Practice Point: Here the First Department considered “new” facts which were  not part of the record on appeal in determining there should be a new hearing on mother’s petition to relocate.

 

/ , , ,

REPORTER WHO INTERVIEWED A MURDER SUSPECT WAS ENTITLED TO A WRIT OF PROHIBITION PREVENTING THE ENFORCEMENT OF A SUBPOENA TO TESTIFY AT THE SUSPECT’S TRIAL; THE PEOPLE DID NOT MEET THE CRITERIA OF CIVIL RIGHTS LAW 79-H, THE NEW YORK SHIELD LAW, WHICH PROTECTS REPORTERS FROM SUBPOENAS WHEN THE REPORTER’S TESTIMONY IS NOT “CRITICAL OR NECESSARY” TO THE PEOPLE’S CASE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined the petitioner, a reporter who had interviewed a murder suspect (Ramsaran) prior to his conviction (which was overturned), was entitled to a writ of prohibition preventing the enforcement of a subpoena to testify at the suspect’s second murder trial  The People did not meet the criteria required by Civil Rights Law 79-h known as the New York Shield Law:

… [P]etitioner has made a sufficient showing that, if in error, respondent (County Court Judge) exceeded his jurisdiction and power in denying petitioner’s motion to quash the subpoena and in ordering her to testify to the information that she obtained in her capacity as a journalist in contravention of Civil Rights Law § 79-h. * * *

To overcome the qualified privilege afforded to petitioner under the New York Shield Law, it was incumbent on the People to make “a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source” … . * * *

Even accepting that the information was “highly material and relevant” to the prosecution of Ramsaran, the People failed to establish that it was “critical or necessary.” There is a multitude of other evidence against Ramsaran, including the statements that he made during his telephone calls to 911, his girlfriend and to the police, as well as DNA evidence of the blood found on his clothes and the victim’s van. Contrary to the People’s contentions, Ramsaran’s statements during the interview do not contradict any of his other statements, but rather corroborate other available evidence against him … . Matter of Canning v Revoir, 2023 NY Slip Op 04623, Third Dept 9-14-23

Practice Point: This is a rare example of the granting of a writ of prohibition preventing a judge from enforcing a subpoena. The subpoena sought the testimony of a reporter who had interviewed a murder suspect. The People did not meet the criteria of the New York Shield Law which protects reporters from subpoenas when the reporter’s testimony is not “critical or necessary” to the People’s case.

 

/ , ,

A DEFAULTING PARTY ADMITS ALL THE ALLEGATIONS IN THE COMPLAINT; THEREFORE LIABILITY ISSUES SHOULD NOT BE CONSIDERED AT THE INQUEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined liability issues should not have been considered at the inquest where defendant had defaulted:

By defaulting, the defendant admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Znojewski v Mamczur, 2023 NY Slip Op 04617, Second Dept 9-13-23

Practice Point: A defaulting party admits the allegations in the complaint. Liability issues are off limits at an inquest to determine damages.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy