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IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE, VIDEO SURVEILLANCE OF PLAINTIFF TAKEN BEFORE THE DEPOSITION AND AFTER A DISCOVERY ORDER WAS PRECLUDED FROM BOTH THE SUMMARY JUDGMENT STAGE AND TRIAL; THERE IS NO SPECIFIC DEADLINE FOR PROVIDING VIDEO SURVEILLANCE GATHERED AFTER THE DEPOSITION; THE POST-DEPOSITION VIDEO SURVEILLANCE WAS NOT PRECLUDED (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined that video surveillance of the plaintiff taken prior to the deposition in this traffic accident case, and after a discovery order requiring disclosure of video surveillance had been issued, could not be used in support of a summary judgment motion re: “serious injury” or at trial. However, video surveillance taken after the deposition need not be provided to the plaintiff by any specific deadline and was not precluded:

… [W]e conclude that the defendant’s noncompliance with the plaintiff’s discovery notice and two court orders, over an extended period of time, was willful and strategic with regard to the [pre-deposition] surveillance video. … [T]he defendant should have been precluded from using the … surveillance video of the plaintiff …, as it was not disclosed prior to the plaintiff’s deposition … . * * *

CPLR 3101(i) contains no language prohibiting the acquisition of surveillance video of a party after that party has testified at a deposition. Nor does any decisional authority. Indeed, CPLR 3101(h) recognizes that disclosure is a continuing obligation, requiring parties to amend or supplement discovery responses when later information is obtained that renders an earlier response inaccurate or incomplete when made or when the prior response, though correct and complete when made, is materially no longer so. And parties are not required to be more forthcoming with surveillance videos than they would with any ordinary discovery material under CPLR 3101(a) … .

That said, CPLR 3101(i) provides no fixed deadline for the disclosure of post-deposition surveillance video footage … . Rather, trial courts may regulate issues of timing through their preliminary and compliance conference orders … , subject to their authority and discretion to manage their calendars and determine whether to preclude evidence under CPLR 3126(2) for any noncompliance with court-imposed deadlines … . Pizzo v Lustig, 2023 NY Slip Op 02541, Second Dept 5-10-23

Practice Point: Here surveillance video of the plaintiff which was gathered before the deposition and after a disclosure order was precluded from both the summary judgment stage and the trial. There is no specific deadline for turning over video surveillance of the plaintiff gathered after deposition and that video evidence was not precluded.

 

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​ DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION OR DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not demonstrate it did not create the dangerous condition and did not demonstrate it did not have constructive notice of the condition. A metal gate, which should have been secured, fell on plaintiff:

… [T]estimony, if credited, indicates that the gate was not secured to the track, thereby raising a triable issue of fact as to whether the manager created the alleged dangerous condition that caused the plaintiff’s injuries by failing to properly secure the gate at the end of his shift that day … .

… [T]he service manager testified at his deposition that it was his regular practice to inspect the area of the gate “two [or] three times a day,” but the defendant offered no evidence as to when the gate was last inspected on the date of the plaintiff’s injuries. The service manager’s testimony, which “merely referenced his general inspection practices” and failed to indicate when the area where the accident occurred “was last inspected . . . relative to the accident,” was insufficient to demonstrate a lack of constructive notice … . Pena v Pep Boys-Manny, Moe & Jack of Del., Inc., 2023 NY Slip Op 02530, Second Dept 5-10-23

Practice Point: Here a metal gate which should have been secured fell on plaintiff. The defendant did not demonstrate when the area where the accident occurred was last inspected. Therefore defendant failed to demonstrate it did not have constructive notice of the unsecured gate.

Similar constructive-notice issue and result in a slip and fall: Rolon v Arden 29, LLC, 2023 NY Slip Op 02545, Second Dept 5-10-23

 

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IN A JUDICIAL DISSOLUTION, IF THE PARTIES CANNOT AGREE ON THE DISPOSITION OF THE ASSETS THE ONLY OPTION IS LIQUIDATION AT A PUBLIC SALE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not have the authority to order a sealed-bid auction of the corporate assents in this judicial dissolution case. Because the parties could not agree on the disposition of the assents, under the Business Corporation Law, the only option is liquidation at a public sale:

“‘Postdissolution procedures in a judicial dissolution proceeding are set forth in Business Corporation Law § 1005 through 1008′” … . Business Corporation Law § 1005(a)(2) states that after dissolution “[t]he corporation shall proceed to wind up its affairs, with power to fulfill or discharge its contracts, collect its assets, sell its assets for cash at public or private sale, discharge or pay its liabilities, and do all other acts appropriate to liquidate its business.” “When the parties cannot reach an agreement amongst themselves with respect to the sale of the corporation’s assets either to one another or to a third party, ‘the only authorized disposition of corporate assets is liquidation at a public sale'” … . Thus, since the parties were not able to reach a full agreement as to the terms of the private sale, the Supreme Court did not have the authority to authorize the sealed-bid auction … . Matter of ANO, Inc. v Goldberg, 2023 NY Slip Op 02508, Second Dept 5-10-23

Practice Point: In a judicial dissolution of a corporation, if the parties cannot agree on the disposition of the assets, liquidation at a public sale is the only option.

 

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PLAINTIFF, ON THE DAY OF TRIAL, REQUESTED AND WAS GRANTED A DISCONTINUANCE WITHOUT PREJUDICE; PLAINTIFF COULD NOT TAKE ADVANTAGE OF THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS AFFORDED BY CPLR 205(A) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discontinuance of the action without prejudice, which plaintiff requested on the day of trial, did not entitle plaintiff to the six-month extension of the statute of limitations afforded by CPLR 205(a):

CPLR 205(a) “extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences” … . The statute “provides a six-month grace period” where the previous action has been dismissed in “any ‘other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits'” … .

In this case, CPLR 205(a) was not available to extend the limitations period beyond the termination of the 2001 action, since that action was terminated by means of a voluntary discontinuance. The plaintiff affirmatively requested the discontinuance, and it was granted at his behest and over his adversary’s objection. An action may be voluntarily discontinued either by a stipulation or notice, pursuant to CPLR 3217(a), or by a court order, pursuant to CPLR 3217(b). Contrary to the plaintiff’s contention, a discontinuance sought by a plaintiff and effectuated by a court order under CPLR 3217(b) is no less voluntary within the meaning of CPLR 205(a) than a discontinuance effectuated by a stipulation or notice under CPLR 3217(a) … . Islam v 495 McDonald Ave., LLC, 2023 NY Slip Op 02501, Second Dept 5-10-23

Practice Point: A discontinuance without prejudiced granted to plaintiff over objection is a voluntary discontinuance to which the six-month extension of the statute of limitations afforded by CPLR 205(a) does not apply.

 

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THE STORE MANAGER TOOK THE TWO CANS OF RED BULL DEFENDANT WAS CARRYING FROM HIM AND TOLD HIM TO LEAVE THE STORE; THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE BURGLARY CONVICTION; AN EXTENSIVE TWO-JUSTICE DISSENT ARGUED OTHERWISE (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined the evidence supported the burglary charge. The defendant was stopped by the store manager carrying two cans of Red Bull. The manager took the cans and defendant left the store. The dissenters argued there was no evidence the defendant intended to leave the store without paying:

We disagree with the dissent that the surveillance video supports a reasonable inference that defendant was planning to purchase the two cans of Red Bull because he has “what appears to be cash” in his hand, while walking toward the front of the store. The record indicates that when defendant walked down the store aisle, toward the front of the store, holding a can of Red Bull in each hand, the store manager told him to stop. She then told defendant that he did not belong in CVS, and asked defendant to leave and to give her the two cans. Defendant apparently “became upset,” put the two cans down and immediately left the store. Defendant never indicated that he intended to buy the two cans of Red Bull or made any effort to pay for them. Following his arrest, defendant admitted to police that “[he] was thirsty, [he] need[ed] something to drink[,]” and that “all [he] took was a Red Bull.” In fact, the defense never sought to prove that defendant was carrying cash in his hand or made such an argument to the jury. This argument is purely speculative. The jury viewed the video and was able to decide for itself whether the video was “grainy” as well as what reasonable inferences could be drawn from the defendant’s actions. People v Williams, 2023 NY Slip Op 02467, First Dept 5-9-23

Practice Point: Here the store manager took the two cans of Red Bull defendant was carrying and told the defendant to leave the store, which he did. The strong dissent argued the burglary conviction was not supported because there was no evidence defendant did not intend to pay for the Red Bull.

 

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DEFENDANTS IN THIS WET-FLOOR SLIP AND FALL CASE WERE NOT ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED BEFORE THE FALL AND THERE WAS EVIDENCE THE MAT AND WARNING SIGN PLACED IN THE AREA WERE INADEQUATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this wet-floor slip and fall case. There was no evidence when the area was last inspected prior to fall. And there was evidence the mat and warning sign placed in the area were inadequate:

… [D]efendants failed to make a prima facie showing that they lacked actual or constructive notice of the hazardous condition caused by the wet and slippery floor where plaintiff fell, as they did not submit any evidence establishing when they last inspected the vestibule on the day of the accident … . Rather, the evidence shows that the building’s superintendent was aware of the hazardous condition and tried to address it with a mat and caution sign. In addition, plaintiffs raised issues of fact as to whether these precautions were reasonable under the circumstances. Although a landlord is not obligated to continuously mop moisture tracked onto the floor of its premises by people entering from outside or to cover the entire floor with mats, here plaintiff claims that her accident was caused by the building superintendent’s placement of an unreasonably short anti-slip floor mat on known wet, glossy tiles on a newly laid floor … . Plaintiffs also claim that defendants failed to check to see if the wet floor warning sign remained in place after it was initially placed as a precautionary device. Rodriguez v KWIK Realty, LLC, 2023 NY Slip Op 02471, First Dept 5-9-23

Practice Point: In a slip and fall case the defendant must show the area was inspected close in time to the fall in order to prove a lack of constructive notice.

Practice Point: Even where, as here, the defendant attempts to address the dangerous condition (placing a mat and a warning sign in the area of the wet floor0 a question of fact may be raised about whether the measures taken were adequate.

Similar constructive-notice issue and result in Gomez v Samaritan Daytop Vil., Inc., 2023 NY Slip Op 02458, First Dept 5-9-23

 

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UNDER THE FACTS, PLAINTIFF CAN ASSERT A CLAIM FOR TORTIOUS INTERFERENCE WITH CONTRACT AGAINST DEFENDANT, EVEN THOUGH BOTH ARE SIGNATORIES TO THE MULTILATERAL CONTRACTS; THE PARTIES HAVE DIFFERENT RIGHTS AND DUTIES UNDER THE CONTRACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that, under the facts, plaintiffs should be allowed to state a claim for tortious interference with contract against another signatory to the multilateral agreements:

We are asked to decide whether a party to multilateral contracts may be sued by its contracting counterparty for inducing a breach of those contracts. Here, we answer that question in the affirmative. The rights and duties of defendants are separate from those of the breaching party. Plaintiffs also lack a contractual remedy against defendants. Under this narrow set of circumstances, plaintiffs should be permitted to assert a cause of action for tortious interference with contract, despite defendants being signatories to the multilateral agreements. * * *

The general principle that only a nonparty to a contract can be liable for tortious interference derives from cases involving either bilateral contracts or contracts under which all defendants had the same or similar contractual obligations … . * * *

This reasoning does not apply, however, if the inducing party is subject to duties that are different from those it allegedly encouraged another party to the contract to breach. Given such facts, the plaintiff cannot assert that the offending defendant breached a contractual obligation to it. “[T]he fact that one may derive rights under the same agreement as two other contracting parties does not excuse interference with their contractual rights” … . When breaching and inducing parties have different rights and duties, if the plaintiff is unable to recover fully from the breaching party, a tortious interference claim against the inducing party may be necessary for the plaintiff to be made whole. Arena Invs., L.P. v DCK Worldwide Holding Inc., 2023 NY Slip Op 02476, First Dept 5-9-23

Practice Point: Usually only a nonparty to a contract can be liable for tortious interference. Here plaintiff and defendant were both signatories to multilateral contracts. Because both had different rights and duties under the contracts, plaintiff was allowed to assert a claim  for tortious interference with contract against defendant.

 

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THE STATUTE ALLOWING ONLY MEMBERS OF THE RELEVANT PARTY TO SUBMIT WRITE-IN BALLOTS IN A PRIMARY ELECTION IS CONSTITUTIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional:

The statute, which became effective on October 8, 2021, amended three sections of the Election Law to limit the universe of permissible write-in primary votes to enrolled members of the relevant party. Election Law § 6-164 was amended to specify that the opportunity to ballot process could be carried out on behalf of only candidates enrolled in the relevant party (see L 2021, ch 480, § 1). Section 6-166 (2) was amended to change the language required on the opportunity to ballot petition correspondingly (see L 2021, ch 480,§ 2). Finally, section 8-308 was amended to state: “A write-in ballot cast in a party primary for a candidate not enrolled in such party shall be void and not counted” (Election Law § 8-308 [4]; see L 2021, ch 480, § 3). * * *

… [T]he intended effect of the statute is to limit the universe of permissible write-in candidates in a party primary election to individuals who are members of that party. Political parties have protected associational rights, which include the right to identify their own members and to select candidates who best represent their ideals and preferences … and the “right to exclude non-members from their candidate nomination process” … . We conclude that the restrictions imposed by the statute were intended to protect those rights, and that petitioners have no associational right to involve non-members in the nomination process of their parties … .  Matter of Kowal v Mohr, 2023 NY Slip Op 02480, Fourth Dept 5-9-23

Practice Point: The statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional.

 

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DEFENDANT IN THIS MANSLAUGHTER CASE WAS THE VICTIM OF DOMESTIC VIOLENCE AND SHOULD HAVE BEEN SENTENCED UNDER THE ALTERNATIVE SENTENCING SCHEME IN THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (FOURTH DEPT). ​

The Fourth Department determined defendant should have been sentenced in accordance with the Domestic Violence Survivors Justice Act (DVSJA) in this manslaughter prosecution and reduced her incarceration to four years:

Penal Law § 60.12 (1) … provides an alternative sentencing scheme that the sentencing court may apply where it determines that “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant as such term is defined in .. ; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh.”

Here, we conclude that a preponderance of the evidence supports both a finding that defendant was a victim of domestic violence during her relationship with the victim and was subjected to “substantial physical, sexual or psychological abuse” and a finding that “such abuse was a significant contributing factor to the defendant’s criminal behavior” … . We further conclude that sentencing defendant pursuant to the normal sentencing guidelines would be “unduly harsh” in light of the “nature and circumstances of the crime and the history, character and condition of the defendant” … . People v Partlow, 2023 NY Slip Op 02479, Fourth Dept 5-9-23

Practice Point: The defendant in this manslaughter prosecution was a victim of domestic violence. She met the criteria for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act.

 

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THE ZONING BOARD OF APPEALS’ INTERPRETATION OF THE CODE RE: THE PARKING OF A CAMPER TRAILER ON THE PETITIONER’S PROPERTY WAS IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the zoning board of appeals’ (ZBA’s) interpretation of the zoning code was irrational. Petitioner was ordered to remedy the violation which was alleged to be his parking his camper trailer on his property within 250 feet of the property line. But the code provisions did not support the alleged violation:

The interpretation by a zoning board of its governing code is generally entitled to great deference by the courts” … . In the end, “[s]o long as its interpretation is neither ‘irrational, unreasonable nor inconsistent with the governing statute,’ it will be upheld” … . “Where, however, the question is one of pure legal interpretation of [a zoning code’s] terms, deference to the zoning board is not required” … . “[T]he ultimate responsibility of interpreting the law is with the court” … .

… [W]e agree with petitioner that respondents’ interpretation of the Zoning Code is irrational and unreasonable … . The “order to remedy violation” stated that petitioner violated the setback requirement set forth in section 110-3 of the Town’s Zoning Code, which limits “[t]he number of tents, trailers, houseboats, recreational vehicles, or other portable shelters in a camp” … . The Zoning Code, however, defines a “[c]amp” as “[a]ny temporary or portable shelter, such as a tent, recreational vehicle, or trailer” … . Respondents do not explain how a trailer or recreational vehicle can constitute both a “[c]amp” as defined in section 103-2 as well as a shelter “in a camp,” as defined in section 110-3, and the Zoning Code does not have additional provisions that clarify the issue. Matter of Lemmon v Town of Scipio, 2023 NY Slip Op 02446, Fpurth Dept 5-5-23

Practice Point: Here the zoning code was self-contradictory and the zoning board of appeals applied the code irrationally with respect to petitioner’s parking a camper trailer on his property.

 

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