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PURSUANT TO THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) (1) DEFENDANT’S MARIHUANA CONVICTION WAS PROPERLY VACATED (2) ANOTHER CONVICTION WAS PROPERLY SUBSTITUTED FOR THE VACATED CONVICTION (3) BUT COUNTY COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER WHETHER SUBSTITUTING ANOTHER CONVICTION SERVED THE INTEREST OF JUSTICE; MATTER REMITTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing County Court, determined: (1) defendant’s marijuana conviction was properly vacated under the Marihuana Regulation and Taxation Act (MRTA); (2) once vacated, the court had the authority to substitute a conviction for the vacated conviction (which it did); but (3) the court committed reversible error by failing to consider whether substituting a conviction served the interest of justice. The matter was remitted for the “interest of justice” ruling:

… [T]he main questions presented are whether the County Court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction, and whether the court failed to consider if it was not in the interests of justice to do so. We hold that the court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction. We further hold that the court committed reversible error by failing to consider, as required by the statute, whether it was not in the interests of justice to substitute a conviction for an appropriate lesser offense. People v Graubard, 2023 NY Slip Op 01308, Second Dept 3-15-23

Practice Point: Under the Marihuana Regulation and Taxation Act (MRTA) persons convicted of marihuana offenses which have been eliminated or reduced may move to vacate the conviction. Once vacated, the statute allows the substitution of another conviction but the court must consider whether the substitution serves the interest of justice.

 

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ALTHOUGH THE READY-FOR-TRIAL ANNOUNCEMENT WAS TIMELY, IT WAS ILLUSORY BECAUSE THE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS HAD NOT BEEN FILED; INDICTMENT PROPERLY DISMISSED (SECOND DEPT).

The Second Department, affirming the “speedy trial” dismissal of the indictment, noted that, although the ready-for-trial announcement was timely, it was illusory because the certificate of compliance with discovery obligations had not been filed:

… County Court properly granted the defendant’s motion to dismiss the indictment. Contrary to the People’s contention, their October 28, 2020 statement of readiness, which, technically, was within the speedy trial time limit, was nevertheless illusory, as they never certified their compliance with their discovery obligation under CPL 245.20 in a certificate of compliance that they were required to file with the court before or at the time they announced their readiness for trial (see CPL 30.30[5]; 245.50[1], [3]). The People’s … statement of readiness was therefore insufficient to stop the running of the speedy trial clock … , and the statutory period to declare readiness had lapsed for speedy trial purposes as of the time the defendant moved to dismiss the indictment. People v Brown, 2023 NY Slip Op 01306, Second Dept 3-15-23

Practice Point: A timely ready-for-trial announcement is illusory if the certificate of compliance with discovery obligations has not been filed.

 

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​ THE JUDGE SHOULD HAVE HELD A HEARING IN THIS PARENTAL-ACCESS PROCEEDING AND SHOULD NOT HAVE RELIED ON A REPORT BY A FORENSIC EVALUATOR WHICH WAS NOT ADMITTED IN EVIDENCE (SECOND DEPT). ​

he Second Department, reversing Family Court, determined a hearing should have been held in this parental-access proceeding:

Custody and parental access determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . “While the general right to a hearing in [parental access] cases is not absolute, where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … .

Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of the mother’s parental access … . Further, the Family Court, in making its determination without a hearing, relied upon the report of the forensic evaluator, which had not been admitted into evidence, and the evaluator’s opinions and credibility were untested by the parties … . Matter of McCabe v Truglio, 2023 NY Slip Op 01299, Second Dept 3-15-23

Practice Point: Custody and parental-access determinations generally require hearings. Family Court should not rely on reports which have not been admitted in evidence.

 

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PLAINTIFF CHANGED LANES, CUT OFF DEFENDANT’S VEHICLE AND CRASHED INTO THE REAR OF THE CAR IN FRONT; DEFENDANTS MOVED FOR SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE; SUPREME COURT DENIED THE MOTION DESPITE PLAINTIFF’S FAILURE TO OPPOSE IT; THE SECOND DEPARTMENT AWARDED DEFENDANTS SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the PTM defendants’ motion for summary judgment in this rear-end collision case should have been granted. Plaintiff suddenly changed lanes, cut off the PTM defendants’ truck and then plaintiff struck the car in front. The emergency doctrine applied to the PTM defendants. It is worth noting that plaintiff did not oppose the PTM defendants’ motion:

… [T]he PTM defendants submitted an affidavit from Murrel [the driver of the PTM truck], which demonstrated, prima facie, that he had a nonnegligent explanation for striking the rear of the plaintiff’s vehicle and that he acted reasonably when he was faced with an emergency situation not of his own making … .  According to Murrel, prior to the accident, he was operating his vehicle behind Acevedo’s vehicle at a reasonable and safe distance. The plaintiff’s vehicle, suddenly and without warning, cut in front of Murrel’s vehicle and, seconds later, struck the rear of Acevedo’s vehicle and then came to a sudden stop. Due to traffic conditions, Murrel could not safely change lanes, and although he applied the brakes, he could not avoid colliding with the plaintiff’s vehicle. Martin v PTM Mgt. Corp., 2023 NY Slip Op 01285, Second Dept 3-15-23

Practice Point: The emergency doctrine provides a non-negligent explanation for a rear-end collision which warrants summary judgment. Here plaintiff changed lanes quickly and cut off defendants’ vehicle.

 

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CONFLICTING EVIDENCE OF THE WEATHER AT THE TIME OF THE ICE SLIP AND FALL PRECLUDED SUMMARY JUDGMENT BASED ON THE STORM-IN-PROGRESS RULE; IN ADDITION, THERE WAS EVIDENCE THE ICE WAS THERE FOR SOME TIME BEFORE THE FALL AND DEFENDANTS DID NOT DEMONSTRATE THEY LACKED ACTUAL OR CONSTRUCTIVE NOTICE OF IT; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this ice slip and fall case should not have been granted: There was conflicting evidence about the weather at the time of the accident, so the storm-in-progress defense was not established. There was evidence the ice was on the sidewalk for some time before the accident and defendants did not demonstrate they lacked actual or constructive notice of the condition:

Contrary to the Supreme Court’s determination, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress rule. The defendants submitted transcripts of the deposition testimony of the plaintiffs and the defendants’ representatives, who gave conflicting testimony as to the weather conditions at the approximate time of the accident … . In addition, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the ice upon which the injured plaintiff slipped existed prior to the day of the accident and whether the defendants lacked actual or constructive notice of a preexisting condition… . Licari v Brookside Meadows, LLC, 2023 NY Slip Op 01284, Second Dept 3-15-23

Practice Point: In an ice slip and fall, conflicting evidence of the weather at the time of the fall will not support the storm-in-progress defense at the summary judgment stage. In addition, here there was evidence the ice was there for some time before the fall and defendants did not demonstrate the lacked actual or constructive notice of it. The defendants’ motion for summary judgment should not have been granted.

 

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​ THE COMPLAINT ALLEGED AN ORAL JOINT VENTURE AGREEMENT BUT DID NOT ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES; THE STATUTE OF FRAUDS THEREFORE APPLIED AND THE COMPLAINT WAS DISMISSED; PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to amend the complaint should have been granted. The initial breach of contract complaint was dismissed because it was not alleged the parties to the oral joint venture agreed to share the losses (therefore the statute of frauds applied to the agreement). The amendment sought to include the allegation the parties agreed to share the losses:

… Supreme Court improperly denied the plaintiff’s motion on the basis that the breach of contract causes of action in the amended complaint had previously been dismissed … . Moreover, under the circumstances here, the court should have granted the plaintiff’s motion. The defendants cannot be prejudiced or surprised by the proposed amendments, which were premised upon the same facts, transactions, or occurrences alleged in the amended complaint and “simply sought to cure the deficiencies cited by the Supreme Court in its earlier order which resulted in the dismissal” … . Further, the plaintiff explained that the omission of a loss-sharing allegation from the amended complaint was inadvertent, and he diligently sought to amend the pleading to correct the defect … . Benjamin v 270 Malcolm X Dev., Inc., 2023 NY Slip Op 01275, Second Dept 3-15-23

Practice Point: In the absence of prejudice amendment of a complaint should be allowed. Here the complaint was dismissed because plaintiff did not allege the parties agreed to share the losses in an oral joint venture agreement which triggered the statute of frauds. Plaintiff’s motion to amend the complaint to allege the parties agreed to share the losses should have been granted.

 

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PLAINTIFF ALLEGEDLY TRIPPED ON DEBRIS AND FELL INTO A TWO-TO-THREE-FOOT-DEEP PIT FROM WHICH THE PLYWOOD COVER HAD BEEN REMOVED TRIGGERING POTENTIAL LIABILITY UNDER LABOR LAW 240(1) AND 241(6); ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT OF THE OWNER WITH SUPERVISORY AUTHORITY; TWO DEFENDANTS MAY BE LIABLE UNDER LABOR LAW 200 FOR THE DANGEROUS CONDITIONS; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversed Supreme Court and reinstated the complaint in this Labor Law 240(1), 241(6) and 200 action. Plaintiff’s decedent allegedly tripped on debris and fell into a two-to-three-foot deep pit from which the plywood cover had been removed:

… [P]laintiff has raised an issue of fact as to whether application of Labor Law § 240 governs this claim sufficient to defeat defendants’ various motions for summary judgment … .

… [P]laintiff raised issues of fact barring dismissal of the Labor Law § 241(6) cause of action, as Industrial Code §§ 23-1.7(e) and 23-1.30 may apply to circumstances of plaintiff’s accident. Plaintiff’s decedent testified that he tripped over debris in a passageway and then into a pit in an area that was arguably a work area … .

As to Baring’s liability under the Labor Law, it failed to establish that it is not a statutory agent for purposes of Labor Law §§ 240(1) or 241(6). Baring’s contract with Plaza delegated the authority to Baring to supervise and control the installation of kitchen equipment and obligated it to exercise such supervision over any of its subcontractors, such as decedent’s employer. That it may not have actually done so is not dispositive … .

With respect to the Labor Law § 200 and common-law negligence causes of action as against NYY Steak and Plaza, there is an issue of fact as to whether those defendants were on notice that the illumination at the site was insufficient … .. Plaintiff also adduced evidence of constructive notice as to the uncovered pit… . Devita v NYY Steak Manhattan, LLC, 2023 NY Slip Op 01257, First Dept 3-14-23

Practice Point: Plaintiff allegedly tripped on debris and fell into a two-to-three-foot-deep pit from which the plywood cover had been removed. Both Labor Law 240(1) and 241(6) were therefore implicated. One defendant may have been liable as a statutory agent of the owner with supervisory authority. Two other defendants may have been liable for the dangerous conditions, including inadequate lighting, pursuant to Labor Law 200.

 

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THE EVIDENCE FATHER NEGLECTED THE DAUGHTER (EXCESSIVE CORPORAL PUNISHMENT) WAS SUFFICIENT; BUT THE EVIDENCE FATHER DERIVATIVELY NEGLECTED THE SON WAS NOT (FIRST DEPT).

The First Department, reversing (modifying Family Court) determined the evidence father derivatively neglected the son was insufficient:

Family Court’s determination that respondent derivatively neglected his son J.L. was not supported by a preponderance of the evidence. The finding was based entirely on the excessive corporal punishment of the daughter, which took place outside the home. There was no evidence that respondent’s excessive corporal punishment was ever directed at the older child, who was 14 years old at the time, or that he was even aware of the abuse. Furthermore, there was no evidence that the son was at risk of becoming impaired, as he continued to reside with respondent after the petitions were filed … . Matter of C.L. (Edward L.), 2023 NY Slip Op 01260, First Dept 3-14-23

Practice Point: There was no evidence the son was even aware of father’s excessive corporal punishment of the daughter, which took place outside the home. The evidence father derivatively neglected the son was insufficient.

 

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THERE WAS NO EVIDENCE THE POLICE ANNOUNCED THEIR PURPOSE (ARREST WARRANT) BEFORE ENTERING THE APARTMENT; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the suppression motion should have been granted because there was no evidence the police announced their purpose (arrest warrant) before entering the apartment:

The hearing evidence supports findings as follows: The police executing the arrest warrant knocked and heard movement in the apartment but received no response, they announced that they were police and again received no response, and they then entered the apartment after finding that the door was unlocked. Only after opening the door, and after entering the apartment, a detective announced, “NYPD arrest warrant.” There was no evidence that in any way suggests that the police, before entering the apartment, attempted to satisfy the statutory requirement of giving “notice” of their “purpose” (CPL 120.80[4] …). Accordingly, the court should have granted defendant’s motion to suppress the physical evidence at issue. People v Jones, 2023 NY Slip Op 01262. First Dept 3-14-23

Practice Point: The did not comply with the statutory requirement that they announce their purpose, here the execution of an arrest warrant, before entering the apartment. The motion to suppress should have been granted.

 

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A CORPORATION (HERE A COOPERATIVE) DOES NOT OWE A FIDUCIARY DUTY TO THE SHAREHOLDERS; THE INDIVIDUAL BOARD MEMBERS MAY OWE A FIDUCIARY DUTY TO THE SHAREHOLDERS FOR INDIVIDUAL ACTIONS BUT NO ALLEGATIONS OF WRONGDOING BY BOARD MEMBERS WERE MADE (FIRST DEPT).

​The First Department, reversing (modifying) Supreme Court, noted that a corporation (or, in this case a cooperative) does not owe a fiduciary duty to its shareholders:

… [T]he second cause of action for breach of fiduciary duty as against the cooperative and the board member defendants also does not state a claim upon which relief may be granted. The cause of action cannot be sustained as against the cooperative “because a corporation owes no fiduciary duty to its shareholders” … . Furthermore, even assuming that the cause of action was addressed to the actions taken by the individual board member defendants, it “does not allege any individual wrongdoing by the members of the board separate and apart from their collective actions” taken in their capacity as board members … . Tahari v 860 Fifth Ave. Corp, 2023 NY Slip Op 01269, First Dept 3-14-23

Practice Point: A corporation does not owe a fiduciary duty to shareholders. Individual board members may owe a duty which would be breached by wrongdoing, not alleged here.

 

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