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THE JURY SHOULD HAVE BEEN INSTRUCTED DEFENDANT DID NOT HAVE A DUTY TO RETREAT FROM A SHARED BATHROOM USED ONLY BY THE DEFENDANT AND THE COMPLAINANT; ASSAULT CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s assault second conviction, over an extensive two-justice dissent, determined it was reversible error for the judge to refuse to instruct the jury that the defendant did not have a duty to retreat (re: the justification defense). There is no duty to retreat from one’s own dwelling. Here the incident took place in a portion of the housing complex used only by the defendant and the complainant:

Defendant and the complainant lived in a housing complex where they each had a separate room that gave them access to a shared bathroom to which no one else had access. The court should have granted the defense’s request for a jury instruction that defendant, who asserted a defense of justification, had no duty to retreat from the bathroom he shared with the complainant as a matter of law … .

… [T]his bathroom, unlike a hallway bathroom, was accessible only from the respective rooms of defendant and the complainant. As a matter of law, the shared bathroom was a part of defendant’s dwelling, notwithstanding that he shared it with the complainant, as opposed to a common area in the building. Therefore, under Penal Law § 35.15 (2) (a) (i), defendant had no duty to retreat before using deadly physical force to defend himself … .

… [T]he court’s inaccurate instruction that whether the incident took place in defendant’s dwelling depended on the extent to which defendant exercised exclusive possession and control over the area in question could have led the jury to erroneously conclude that the bathroom was not part of defendant’s dwelling because he shared it with the complainant and that therefore defendant had a duty to retreat. People v Delisme, 2022 NY Slip Op 05130, First Dept 9-6-22

Practice Point: In the context of the justification defense to an assault charge, a defendant does not have a duty to retreat from his own dwelling. Here the incident apparently took place in a bathroom used only by the defendant and the complainant. The bathroom was part of defendant’s own dwelling. The jury should have been instructed that defendant did not have a duty to retreat before using deadly force

 

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INSURANCE COVERAGE DEPENDED UPON WHETHER THE INJURED RESPONDENT RESIDED WITH HIS SON IN MAINE; RESPONDENT ALLEGED HE SPLIT HIS TIME BETWEEN RESIDING IN NEW YORK AND RESIDING WITH HIS SON; A PERSON MAY HAVE MORE THAN ONE RESIDENCE; A FRAMED-ISSUE HEARING WAS REQUIRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined a framed-issue hearing was required to determine whether respondent was entitled to coverage under the uninsured/underinsured motorist (SUM) provision of respondent’s son’s policy. Whether respondent is covered depends upon whether he resides with his son. Respondent alleged he splits his time between residing in New York and residing with his son in Maine. A person may have more than one residence:

The policy contained an uninsured/underinsured motorist endorsement (SUM coverage) which defined an insured as, among other things, “1. You or any family member.” The policy defined “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.” * * *

The policy conditions the status of an insured relative on whether the relative resides with the named insured. Residency is established by a degree of permanency and an intention to remain, and a person may have more than one residence … . Here, both parties have proposed that it would be reasonable to hold a framed issue hearing, and Elliott [respondent] has raised sufficient facts to warrant one, including that he splits his time between Maine and New York, spends a portion of each year at 22 Huntress Street [Maine] where he keeps personal items and has a bedroom, furnishes the house and landscapes the yard jointly with Zachary [respondent’s son], and holds the only mortgage on the property. Matter of Travelers Home & Mar. Ins. Co. v Barowitz, 2022 NY Slip Op 05131, First Dept 9-6-22

Practice Point: Here whether the injuries to respondent were covered by an uninsured/underinsured motorist provision depended upon whether respondent resided with his son in Maine. A person may have more than one residence. Respondent alleged he resided both in New York and in Maine with his son. A hearing to was ordered to determine whether respondent in fact “resided” in both Maine and New York.

 

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THE EMPLOYMENT CONTRACT MUST BE READ AS A WHOLE; THE PROVISION RELIED ON BY THE EMPLOYER TO AVOID PAYING DEFENDANT’S EARNED SALARY UPON TERMINATION APPLIED ONLY TO THOSE CURRENTLY EMPLOYED (ALLOWING PAYMENT TO BE DEFERRED WHEN AVAILABLE FUNDS ARE INSUFFICIENT); A DIFFERENT PROVISION REQUIRING PAYMENT IN CASH APPLIED TO TERMINATED EMPLOYEES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the employment contract between Drone and defendant obligated Drone to pay defendant the salary which remained unpaid upon defendant’s termination. Drone unsuccessfully argued the provision of the contract which allowed cash payment of salaries to be deferred when there were insufficient funds applied only to persons who were employed, not to persons whose employment was terminated:

Drone claimed in opposition that it did not have to pay defendant his salary in cash, but had the option to pay defendant his wages in (worthless and unmarketable) Drone stock, relying on paragraph 3 in the employment agreement, governing compensation during the “employment period,” which states, “the Company may elect to . . . defer any cash payment until it has sufficient funds to do so.” Drone, however, ignores paragraph 5(b) of the employment agreement, applicable post-termination, which states that “[i]n the event that [defendant’s] employment with the Company is terminated . . . the Company shall pay or grant [defendant] any earned but unpaid salary, bonus, and Options through [defendant’s] final date of employment with the Company, and the Company shall have no further obligations to [defendant]” … . Read as a whole, the employment agreement makes clear that while payment of defendant’s salary could be deferred for lack of funds while he remained in Drone’s employ, “all earned but unpaid salary” was payable to defendant, unconditionally, upon termination of employment … . The finality of its language reflects an intent that the parties promptly settle up affairs within a reasonable time … . Drone USA, Inc. v Antonelos, 2022 NY Slip Op 05129, First Dept 9-6-22

Practice Point: Contracts must be read as a whole. Here the provision relied upon by the employer to avoid paying a former employee’s salary applied only to current employees (allowing payment to be deferred when there are insufficient funds available.) Another provision requiring payment to terminated employees was the operative provision.

 

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AN INMATE’S RELEASE ON PAROLE DOES NOT RENDER HIS APPEAL OF A DISCIPLINARY DETERMINATION MOOT (THIRD DEPT).

The Third Department determined that, although petitioner had been conditionally released to parole supervision, his challenge to a disciplinary determination had not been rendered moot:

… [D]uring the pendency of this appeal, petitioner was conditionally released to parole supervision. Accordingly, petitioner’s challenge to the Board’s prior decisions denying his release have been rendered moot … . However, petitioner’s challenge to the disciplinary determination has not been rendered moot by his conditional release … .. Accordingly, and as respondents concede that the claim was not time-barred based upon the application of the tolling provisions of certain executive orders that were issued by the Governor in response to the COVID-19 pandemic … , we remit the matter to Supreme Court for respondents to file an answer pursuant to CPLR 7804 (f) … . Matter of Ryhal v Annucci, 2022 NY Slip Op 05117, Third Dept 9-1-22

Practice Point: An inmate’s conditional release to parole does not render the inmate’s appeal of a disciplinary determination moot.

 

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THE RECORD WAS SILENT ON WHETHER DEFENDANT SIGNED THE WAIVER OF INDICTMENT IN OPEN COURT; DEFENDANT’S GUILTY PLEA WAS VACATED AND THE SUPERIOR COURT INFORMATION WAS DISMISSED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea and dismissing the superior court information, determined the record was silent about whether defendant signed the waiver of indictment in open court:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” and “such waiver shall be evidenced by [a] written instrument signed by the defendant in open court in the presence of his or her counsel” (NY Const, art I, § 6; see CPL 195.20)…. The record contains a written waiver of indictment signed by defendant and witnessed by counsel on August 3, 2020, the date he appeared before County Court and entered his guilty plea. The minutes of that appearance reflect that defendant orally agreed to waive indictment and affirmed that his signature is on the written waiver, but the minutes are silent as to whether defendant signed the written waiver in open court. Moreover, there is no reference in the written waiver or in County Court’s order approving the waiver that indicates that the waiver was signed in open court. In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed …. People v Rickman, 2022 NY Slip Op 05112, Third Dept 9-1-22

Practice Point: If the record does not reflect that the waiver of indictment was signed in open court, the defendant’s guilty plea must be vacated and the superior court information dismissed.

 

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IN THIS REAR-END COLLISION CASE, THE ALLEGATION PLAINTIFF STOPPED SUDDENLY WAS NOT SUFFICIENT TO RAISE A QUESTION OF FACT AND DID NOT PRECLUDE THE DISMISSAL OF THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. Defendant’s allegation plaintiff stopped suddenly is not sufficient to raise a question of fact and will not support a comparative-negligence affirmative defense:

… [T]the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his own affidavit, in which he averred that his vehicle was slowing due to traffic when it was struck in the rear by the defendant’s vehicle … . The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendant’s third affirmative defense, which alleged comparative fault, by demonstrating that he was not negligent in the happening of the accident … .. In opposition to the plaintiff’s prima facie showings, the defendant failed to raise a triable issue of fact. Contrary to the defendant’s contention, his claim that the plaintiff made a sudden stop, standing alone, was insufficient to raise a triable issue of fact as to whether the plaintiff negligently contributed to the accident under the circumstances of this case … . Mahmud v Feng Ouyang, 2022 NY Slip Op 05081, Second Dept 8-31-22

Practice Point: In this rear-end collision case, defendant’s allegation plaintiff stopped suddenly was not enough to raise a question of fact and did not preclude the dismissal of the comparative-negligence affirmative defense.

 

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THE 15-YEAR-OLD PLAINTIFF WAS RIDING THE ESCALATOR IN DEFENDANT’S THEATER IMPROPERLY WHEN HE FELL OFF BACKWARDS TO THE FLOOR; THERE WAS NO EVIDENCE OF A DEFECTIVE CONDITION AND PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE; THE THEATER’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

​The Second Department, reversing Supreme Court, determined plaintiff’s injury was not the result of a defective condition on defendant movie theater’s property. The 15-year-old plaintiff was sitting on one rail of an escalator with his feet on the other rail and leaning back against the wall as the escalator descended. But the wall came to an end halfway down and plaintiff fell backwards to the floor:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . Here, the defendants established, prima facie, that the escalator and the adjacent wall were not in violation of any applicable statutes or regulations and that they maintained their premises in a reasonably safe condition … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants violated their common-law duty to maintain the premises in a reasonably safe condition … . The affidavit of the plaintiff’s expert was speculative and insufficient to raise a triable issue of fact … .  Boris L. v AMC Entertainment Holdings, Inc., 2022 NY Slip Op 05080, Second Dept 8-31-22

Practice Point: Here plaintiff’s fall from an escalator was caused by the improper way he was riding the escalator, not by any defect in the property. The property owner’s motion for summary judgment should have been granted.

 

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THE BANK DID NOT COMPLY WITH THE “SEPARATE ENVELOPE” RULE OF RPAPL 1304 WHICH REQUIRES THAT NOTHING ELSE BE INCLUDED IN THE ENVELOPE WITH THE NOTICE OF FORECLOSURE; THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not comply with the “separate envelope” for the notice of foreclosure required by RPAPL 1304. Therefore the bank’s summary judgment motion should not have been granted:

… [T]he plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to show its strict compliance with RPAPL 1304(2). The “separate envelope” mandate of RPAPL 1304(2) provides that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice.” The copies of the 90-day notice submitted by the plaintiff included additional notices not contemplated by RPAPL 1304(2). Since the plaintiff failed to demonstrate that the RPAPL 1304 notice was “‘served in an envelope that was separate from any other mailing or notice'” …. it failed to establish its strict compliance with RPAPL 1304 ,,, , Deutsche Bank Natl. Trust Co. v Ghosh, 2022 NY Slip Op 05076, Second Dept 8-31-22

Practice Point: If the bank includes other information in the envelope containing the notice of foreclosure, the bank has not complied with RPAPL 1304 and is not entitled to summary judgment.

 

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ALTHOUGH THE HOME-INSPECTION CONTRACT WAS NOT SIGNED, PLAINTIFF TESTIFIED SHE WAS AWARE OF THE TERMS OF THE CONTRACT AND AGREED TO THEM; THEREFORE THE UNSIGNED CONTRACT WAS ENFORCEABLE AND PLAINTIFF’S FAILURE TO COMPLY WITH THE NOTIFICATION PROVISION ENTITLED DEFENDANT TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant home-inspection company was entitled to enforcement of a provision in an unsigned contract. The home inspection contract provided that defendant would not be liable if plaintiff failed to timely notify defendant of any alleged defects in the property. Defendant moved for summary judgment based on plaintiff’s failure to notify. The fact that the contract was not signed did not raise a question of fact because plaintiff testified she was aware of the terms of the contract and agreed to them:

“[A]n unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound” … . Here, the plaintiff testified at her deposition that she was “certain” that she looked at the contract “at the time of the inspections,” that she understood the contents of the contract, and that “after reading the agreement before the July 2016 inspection” she “accepted these terms” and paid ARPI its fee. This testimony is bolstered by the fact that the plaintiff signed an identical contract four months earlier for a home inspection performed by the defendants. Accordingly, the defendants demonstrated, prima facie, that the July 2016 contract was valid and enforceable … . Cotich v Town of Newburgh, 2022 NY Slip Op 05075, Second Dept 8-31-22

Practice Point: Although the home inspection contract was not signed, plaintiff testified she was aware of the terms and agreed to them. The contract was therefore enforceable and plaintiff’s failure to comply with the notification provision entitled defendant to summary judgment.

 

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THE JURY FOUND PLAINTIFF SUFFERED PERMANENT INJURY IN THE TRAFFIC ACCIDENT BUT AWARDED $0 DAMAGES FOR FUTURE PAIN AND SUFFERING AND FUTURE MEDICAL EXPENSES; THE DAMAGES AWARD WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the damages-award in this traffic accident case was against the weight of the evidence. The jury found that plaintiff suffered permanent injuries but awarded nothing for future pain and suffering and future medical expenses. Plaintiff’s motion to set aside the verdict pursuant to CPLR 4404(a) should have been granted:

A jury verdict on the issue of damages may be set aside as contrary to the weight of the evidence only if the evidence on that issue so preponderated in favor of the movant that the jury could not have reached its determination on any fair interpretation of the evidence … . Further, while the amount of damages to be awarded for personal injuries is a question for the jury, and the jury’s determination is entitled to great deference … , a jury award may be set aside if it deviates materially from what would be reasonable compensation (see CPLR 5501[c] …).

Where, as here, “the jury . . . concludes that a plaintiff was injured as a result of an accident, the jury’s failure to award damages for pain and suffering is contrary to a fair interpretation of the evidence and constitutes a material deviation from what would be reasonable compensation” … . Carter v City of New Rochelle, 2022 NY Slip Op 05072, Second Dept 8-31-22

Practice Point: Where a jury finds plaintiff was permanently injured in an accident but awards nothing for future pain and suffering and future medical expenses, the damages award should be set aside as against the weight of the evidence.

 

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