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ROBBERY WAS THE FELONY UPON WHICH THE FELONY ASSAULT WAS PREDICATED; THEREFORE THE SENTENCES FOR ASSAULT FIRST AND ROBBERY FIRST MUST RUN CONCURRENTLY (FOURTH DEPT).

The Fourth Department determined the sentences for assault first and robbery first should not have been imposed consecutively:

… [T]he court erred in directing that the sentence on the count of assault in the first degree run consecutively to the sentence imposed on the count of robbery in the first degree because the robbery was the predicate felony for the felony assault (see Penal Law § 70.25 [2] …). Inasmuch as “[t]he felony upon which felony assault is predicated is a material element of that crime,” the sentence imposed on the count of assault in the first degree must run concurrently with the sentence imposed on the count of robbery in the first degree … . People v Brown, 2022 NY Slip Op 02655, Fourth Dept 4-22-22

Practice Point: When one felony (here robbery first) is a predicate felony for another (here assault first), the sentence for the two crimes must run concurrently.

 

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THE PEOPLE DID NOT PROVE THE ALLEGED ACTS OF SEXUAL MISCONDUCT OCCURRED AT LEAST 24 HOURS APART; THEREFORE THE PEOPLE DID NOT PRESENT PROOF SUPPORTING A 20 POINT ASSESSMENT FOR A “CONTINUOUS COURSE OF SEXUAL MISCONDUCT:” LEVEL THREE REDUCED TO LEVEL TWO (FOURTH DEPT).

The Fourth Department, reducing the defendant’s risk level from three to two, determined the People did not prove defendant engaged in a “continuous course of sexual misconduct” which requires that the acts be at least 24 hours apart:

The court erred … in assessing 20 points under risk factor 4 for having engaged in a continuous course of sexual misconduct. Points may be assessed under risk factor 4 if, as relevant here, the People establish by clear and convincing evidence that defendant engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours” … . Here, “[a]lthough the People presented evidence that defendant engaged in acts of sexual contact with the victim on more than one occasion, they failed to establish ‘when these acts occurred relative to each other’ ” … , and thus failed “to demonstrate that such instances were separated in time by at least 24 hours” … . People v Ellis, 2022 NY Slip Op 02654, Fourth Dept 4-22-22

Practice Point: A 20-point SORA assessment for a continuous course of sexual misconduct requires proof the acts took place at least 24 hours apart. Here there was no proof of when the acts occurred relative to each other, therefore the 20-point assessment was struck.

 

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THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION STARTED ANEW WHEN DEFENDANT MADE A PARTIAL PAYMENT; DEFENDANT WAIVED THE LACK OF STANDING DEFENSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute of limitations in the foreclosure action had been restarted by partial payment and defendants had waived the argument that the plaintiff did not have standing:

The partial payment exception “requires proof that ‘there was a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder’ “… . “If the exception is established, the statute of limitations begins to run anew from the date of the partial payment” … . * * *

“Having failed to interpose an answer which asserted the defense [of lack of standing] or to file a timely pre-answer motion raising that defense,” [defendant] waived his contention on his cross appeal that plaintiff lacked standing to commence the action … . Citibank, N.A. v Gifford, 2022 NY Slip Op 02650, Fourth Dept 4-22-22​

Practice Point: Partial payment of a debt after the statute of limitations has run may start the statute running anew. Failure to raise the lack of standing defense in the answer or a motion to dismiss waives it.

 

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THE 2022 CONGRESSIONAL REDISTRICTING MAP FAVORED DEMOCRATS IN VIOLATION OF ARTICLE III OF THE NYS CONSTITUTION (FOURTH DEPT). ​

The Fourth Department, over a two-justice concurrence and a two-justice partial dissent, determined the NYS 2022 congressional redistricting map was drawn to favor democrats in violation of Article III of the NYS Constitution:

… [W]e agree with petitioners and the court that the congressional map was unconstitutional in that it violated article III, § 4 (c) (5), which provides as relevant here that “[d]istricts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”  * * *

We conclude that evidence of the largely one-party process used to enact the 2022 congressional map, a comparison of the 2022 congressional map to the 2012 congressional map, and the expert opinion and supporting analysis of Sean P. Trende, met petitioners’ burden of establishing that the 2022 congressional map was drawn to discourage competition and favor democrats in violation of article III, § 4 (c) (5). First, democratic leaders in the legislature drafted the 2022 congressional redistricting map without any republican input, and the map was adopted by the legislature without a single republican vote in favor of it. Second, under the 2012 congressional map there were 19 elected democrats and 8 elected republicans and under the 2022 congressional map there were 22 democrat-majority and 4 republican-majority districts. Matter of Harkenrider v Hochul, 2022 NY Slip Op 02648, Fourth Dept 4-22-22

 

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A HEAVY PUMP, 3 TO 4 FEET IN HEIGHT, WHICH WAS LEANING AGAINST THE WALL, TIPPED OVER AND STRUCK THE PLAINTIFF; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. A heavy fire pump that was leaning against the wall, unsecured, tipped over and struck plaintiff:

Liability under Labor Law § 240(1) arises where a safety device of the kind enumerated in the statute either proved inadequate to shield against injury resulting directly from the application of the force of gravity to a person or object or where no safety device was provided to shield against such injury … . Here, plaintiff was injured when he and two coworkers were assigned to run conduits along the wall and ceiling of an approximately 8 by 10-foot fire pump room. As they were looking at the wall and ceiling and deciding how to proceed, plaintiff felt a sharp pain in his leg when a 3-to-4 foot tall, 300-500+ pound fire pump, which had been standing upright on the floor, on its narrower end and unsecured, fell on his leg. Where a load positioned on the same level as the injured worker falls a short distance, Labor Law § 240(1) applies if the load, due to its weight, is capable of generating significant force … . Here, the fire pump was required to be secured against tipping or falling and the failure to secure it was a violation of Labor Law § 240(1) … . Grigoryan v 108 Chambers St. Owner, LLC, 2022 NY Slip Op 02620, First Dept 4-21-22

Practice Point: Here a heavy fire pump, 3 t0 4 feet in height, was leaning against a wall on the same level as plaintiff when it tipped over and struck him. An unsecured object positioned on the same level as the injured party which generates significant force when it falls over is covered by Labor Law 240(1).

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS A-FRAME LADDER-FALL CASE; ALTHOUGH NO DEPOSITIONS HAD BEEN TAKEN, THE DEFENDANT FAILED TO SHOW THE SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this A-frame ladder-fall case. The court noted that the motion for summary judgment was not premature, even though no depositions had been taken:

Plaintiff established prima facie that PPC is liable under Labor Law § 240(1) through plaintiff and his coworker’s affidavits that the unstable eight-foot A-frame ladder, which was missing rubber feet, shifted, causing him to fall … . It was undisputed that PPC was the owner of the property. Plaintiff also established that his work of retrofitting light fixtures was covered under § 240(1) and did not constitute mere maintenance … .

We reject PPC’s argument that plaintiff’s motion was premature (CPLR 3212[f]). The fact that no depositions have been taken does not preclude summary judgment in plaintiff’s favor, as PPC failed to show that discovery might lead to facts that would support its opposition to the motion … . PPC also failed to show that facts essential to its opposition were within plaintiff’s exclusive knowledge … . Its argument that deposition testimony might further illuminate issues raised by the affidavits is unavailing. “The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion” … . Laporta v PPC Commercial, LLC, 2022 NY Slip Op 02624, First Dept 4-21-22

Practice Point: In order for a pre-discovery summary judgment motion to be deemed premature, the opposing party must show discovery might lead to facts which would support opposition to the motion (not the case here).

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE EVIDENCE ESTABLISHED DEFENDANT FAILED TO STOP AT A STOP SIGN AND FAILED TO SEE WHAT SHOULD HAVE BEEN SEEN (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this intersection traffic-accident case should have been granted:

Plaintiffs established their prima facie entitlement to partial summary judgment by averring that, at the time of the accident, their vehicle was traveling westbound through an intersection at 91st Avenue in Queens, when defendants’ vehicle failed to stop at a designated stop sign and struck the middle of the driver’s side of plaintiffs’ vehicle … . A presumption of negligence arises from the failure of a driver at a stop sign to yield the right of way to the vehicle on the highway in violation of Vehicle and Traffic Law § 1142 … . …

Defendants’ claim that defendant Bennett stopped at the stop sign, and checked for oncoming traffic but did not see plaintiffs’ vehicle until it suddenly appeared in front of her as she proceeded into the intersection, fails to rebut the presumption of negligence arising from her failure to yield the right of way to plaintiffs’ vehicle, but instead indicates that she was negligent in failing to see what was there to be seen … . Samnath v Lifespire Servs., Inc., 2022 NY Slip Op 02643, First Dept 4-21-22​

Practice Point: Failure to stop at a stop sign raises a presumption of negligence in an intersection traffic-accident case. Proceeding into the intersection and striking a car which has the right-of-way constituted a negligent failure to see what should have been seen.

 

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A SUBSEQUENT INJURY TO THE SAME BODY “MEMBER” WHICH WAS THE SUBJECT OF A PRIOR SCHEDULE LOSS OF USE (SLU) AWARD NEED NOT BE REDUCED BY THE PERCENTAGE LOSS OF THE PRIOR AWARD (CT APP).

The Court of Appeals, in a full-fledged opinion addressing two cases by Judge Cannataro, over an extensive dissent in each case, determined that, under Workers’ Compensation Law section 15, a subsequent injury to the same body “member” may be fully compensable, notwithstanding a prior injury involving the same body “member:”

The common issue in these appeals is whether, under Workers’ Compensation Law (WCL) § 15, a claimant’s schedule loss of use (SLU) award must always be reduced by the percentage loss determined for a prior SLU award to a different subpart of the same body “member” enumerated in section 15. We hold that separate SLU awards for different injuries to the same statutory member are contemplated by section 15 and, when a claimant proves that the second injury, “considered by itself and not in conjunction with the previous disability” (WCL § 15 [7]), has caused an increased loss of use, the claimant is entitled to an SLU award commensurate with that increased loss of use. .Matter of Johnson v City of New York, 2022 NY Slip Op 02579, CtApp 4-21-22

​Practice Point: A schedule loss of use (SLU) award for injury to a body “member” need not be reduced based on a prior SLU award for injury to the same body “member” if the claimant proves the second injury has caused an increased loss of use.

 

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BECAUSE OF A LACK OF PLACEMENT OPTIONS, A CHILD REMOVED FROM SCHOOL WHEN SHE BECAME UNMANAGEABLE REMAINED IN A HOSPITAL EMERGENCY ROOM FOR WEEKS; THE PETITION SOUGHT HER RELEASE FROM THE EMERGENCY ROOM; THE APPEAL WAS DEEMED MOOT BECAUSE THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES HAD FOUND SUITABLE PLACEMENT AND INSTITUTED A PROGRAM TO ENSURE THE PROBLEM WOULD NOT RECUR (CT APP).

The Court of Appeals, dismissing the appeal as moot, over an extensive dissent, determined the exception to the mootness doctrine should not be applied because the problem at the heart of the petition had been adequately addressed by the NYS Office for People with Developmental Disabilities (OPWDD). The subject child had been removed from school and sent to a hospital emergency room because she had become unmanageable. The child ended up staying in the emergency room for weeks because suitable placement was not available. The habeas corpus petition sough her release from the emergency room. During the weeks the child was in the emergency room programs were instituted to facilitate prompt suitable placement of children facing similar circumstances:

… [D]uring the pendency of petitioner’s appeal to this Court, OPWDD developed a new program, Crisis Services for Individuals with Intellectual and/or Developmental Disabilities ([CSIDD] 14 NYCRR 635-16.1 et seq.), aimed at preventing persons with developmental disabilities from experiencing a crisis that may result in hospitalization and thereby reducing the likelihood of these issues recurring. At oral argument before this Court, counsel for OPWDD and DOH represented that the services provided by CSIDD are now available throughout the entirety of the State of New York, and particularly in the region where the child resided. Matter of Mental Hygiene Legal Serv. v Delaney, 2022 NY Slip Op 02578, CtApp 4-21-22

Practice Point: An appeal may be dismissed as moot if the appellate court is presented with evidence the underlying issue has been adequately addressed while the appeal was pending. Here a child removed from school because she became unmanageable had been held in a hospital emergency room for weeks because suitable placement was not available. At the time of oral argument, the child had been placed and a program to prevent recurrence of the problem had been instituted.

 

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THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a two-justice dissent, determined the justification-defense jury instruction should have been given in this assault case. The defendant punched a police officer after the defendant was sprayed in the face with pepper spray:

… [T]he People introduced into evidence a video recording of the assault, in which defendant can clearly be seen punching a police sergeant after defendant is sprayed in the face with pepper spray. Testimony revealed, and the video corroborated, that the pepper spray was deployed because defendant was refusing to take off his shoes and change into footwear provided by the jail so that an officer could finish searching him before bringing him into the jail. However, the video depicts a very brief time period between the initial directive for defendant to remove his footwear and the deployment of the pepper spray. Based on this fact, combined with other circumstances surrounding the incident, we find that there is a reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario. People v Heiserman, 2022 NY Slip Op 02588, Third Dept 4-21-22

Practice Point: Here there was evidence that the police officer’s spraying defendant in the face with pepper spray constituted the use of excessive force. Defendant punched the police officer after the defendant was sprayed and was charged with assault. The failure to instruct the jury on the justification defense was reversible error. Two dissenters disagreed.

 

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