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THE WORKERS’ COMPENSATION BOARD RULED THE PLAINTIFF DID NOT HAVE “POST-CONCUSSION SYNDROME” OR A “CONCUSSION CONDITION;” PLAINTIFF WAS THEREFORE ESTOPPED FROM CLAIMING THOSE INJURIES IN THIS LABOR LAW ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the ruling by the Workers’ Compensation Board that plaintiff did not have “post-concussion syndrome” or a “concussion condition” collaterally estopped plaintiff from claiming those injuries in this Labor Law action:

We agree with defendant that the court erred in denying its motion insofar as it effectively sought summary judgment dismissing plaintiff’s claims for damages related to PCS or a concussion condition as barred by the doctrine of collateral estoppel, but we conclude that plaintiff’s claims for damages related to headaches and the alleged concussion itself are not so barred. The quasi-judicial determinations of administrative agencies, such as the Workers’ Compensation Board (Board), “are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … and a determination whether a plaintiff actually sustained a physical injury causally related to an accident … , the Board in this case specifically found that plaintiff did not have “post-concussion syndrome” or a “concussion condition” that were causally related to the second work accident. Szymkowiak v New York Power Auth., 2022 NY Slip Op 01702, Fourth Dept 3-11-22

Practice Point: Here the Workers’ Compensation Board’s ruling plaintiff did not have “post-concussion syndrome” or a “concussion condition” precluded claims for those injuries in the plaintiff’s Labor Law action pursuant to the doctrine of collateral estoppel.

 

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PURSUANT TO A US SUPREME COURT DECISION WHICH CAME DOWN AFTER DEFENDANT’S CONVICTION, DEFENDANT HAS STANDING TO CHALLENGE THE CELL SITE LOCATION INFORMATION (CSLI) WARRANT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reserving decision and remitting the matter, determined that, based upon a US Supreme Court decision which came down after defendant’s conviction, defendant has standing to challenge the cell site location information (CSLI) warrant:

We agree with defendant … that he has standing to challenge the CSLI search warrant. At the time of the court’s decision, controlling caselaw in this Department held that the acquisition of CSLI was not a search under the State or Federal Constitution because a defendant’s use of a phone “constituted a voluntary disclosure of his [or her] general location to [the] service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties” … . Following defendant’s conviction, the United States Supreme Court decided Carpenter v United States, 138 S Ct 2206, 2217 [2018]), which held that “an individual maintains a legitimate expectation of privacy in the record of his [or her] physical movements as captured through CSLI” … . As a result of the Carpenter decision, defendant is entitled to a determination on the merits regarding his challenges to the CSLI search warrant. People v Ozkaynak, 2022 NY Slip Op 01700, Fourth Dept 3-11-22

Practice Point: The US Supreme Court ruling that defendants have standing to challenge a cell site location information (CDLI) warrant came down after defendant’s conviction in this case. The matter was remitted for a determination of defendant’s suppression motion.

 

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A DETECTIVE WAS PROPERLY ALLOWED TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO; TESTIMONY ABOUT THE “BLINDED” PHOTO ARRAY IDENTIFICATION PROCEDURE WAS PROPERLY ALLOWED; THE DEFENSE CROSS-EXAMINATION ABOUT A WITNESS’S CRIMINAL HISTORY SHOULD NOT HAVE BEEN CURTAILED; ANY ERRORS DEEMED HARMLESS (FOURTH DEPT).

The Fourth Department, finding any evidentiary errors harmless, determined: (1) a detective was properly allowed to identify the defendant in a surveillance video because the People demonstrated the detective had prior contacts with the defendant; (2) testimony about the “blinded” photo identification procedure was properly allowed; and (3) the defense cross-examination about a witness’s criminal history should not have been curtailed by the judge:

We conclude that the court did not abuse its discretion in permitting the challenged testimony because the People presented evidence establishing that the police detective was familiar with defendant based on several prior contacts with defendant over the course of several years. Thus, there “was some basis for concluding that the [police detective] was more likely to identify defendant correctly than was the jury” … . …

Testimony about a photo array procedure, and the array itself, may be admitted where, inter alia, the procedure is ” ‘blinded,’ ” that is, where the person administering the array procedure does not know the suspect’s position in the array (CPL 60.25 [1] [c] [ii]; see CPL 60.30). Here, although the array viewed by the witness was created by the police detective who administered the procedure, the specific procedure conducted was nevertheless blind because the police detective placed three different arrays in envelopes, which he shuffled before having the witness pick one. This procedure is sufficient, in our view, to ensure that, at the time the witness was viewing the array, the police detective did not know the position of defendant in that array … . …

“[C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony” … . … [W]e conclude that the court erred in limiting defense counsel’s cross-examination regarding the underlying facts of a witness’s prior drug conviction that occurred two months before the shooting at issue here, inasmuch as those facts bore on the witness’s credibility and were not remote or cumulative … . People v Griffin, 2022 NY Slip Op 01698, Fourth Dept 3-11-22

Practice Point: Because the detective had prior contact with the defendant, the detective was properly allowed to identify defendant in a surveillance video.

Practice Point: Testimony about the “blinded” photo array identification procedure was properly allowed.

Practice Point: The defense cross-examination about the witness’s criminal history should not have been curtailed.

 

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PLAINTIFF’S MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED; THE WAS NO ALLEGATION THE PARTY TO BE ADDED AS A DEFENDANT HAD ANY INTEREST IN THE PROPERTY IN DISPUTE; AND THE CIVIL CONSPIRACY CAUSE OF ACTION PLAINTIFF SOUGHT TO ADD IS NOT RECOGNIZED IN NEW YORK; THEREFORE THE PROPOSED AMENDMENTS WERE PATENTLY DEVOID OF MERIT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the motion to amend the complaint to add a defendant (Fu) and a cause of action for civil conspiracy should not have been granted. Plaintiff did not allege that Fu had any interest in the property in dispute. And New York does not recognize civil conspiracy as a tort:

It is well settled that leave to amend a pleading shall be freely given, provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit . . . , and the decision to permit an amendment is within the sound discretion of the court” … . Initially, plaintiff clarified in the amended complaint that the first cause of action, which is asserted against all defendants and seeks to set aside the deed and mortgage, was brought under RPAPL article 15. Pursuant to RPAPL article 15, an action may be maintained against any “person [who] . . . may have an . . . interest in the real property which may in any manner be affected by the judgment” (RPAPL 1511 [2]). Here, plaintiff failed to allege in the amended complaint any interest that Fu may have in the property and, thus, she is not a proper party to that cause of action … . Furthermore, New York does not recognize civil conspiracy to commit a tort, such as fraud or conversion, as an independent cause of action … . Therefore, the proposed amendments with respect to Fu are patently devoid of merit. Landco H & L, Inc. v 377 Main Realty, Inc., 2022 NY Slip Op 01695, Fourth Dept 3-11-22

Practice Point: New York does not recognize civil conspiracy as a tort. This case is an example of what it means to find proposed amendments to a complaint “patently devoid of merit.”

 

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RESTITUTION IN EXCESS OF THE STATUTORY CAP FOR LOST WAGES WAS IMPROPERLY AWARDED BECAUSE “LOST WAGES” DOES NOT FIT ANY OF THE EXCEPTIONS TO THE CAP RESTRICTION (FOURTH DEPT).

The Fourth Department, modifying County Court, determined the restitution amount which exceeded the statutory cap did not fit into any of the statutory exceptions to the cap restriction. The victim was improperly awarded an amount for lost wages:

… [T]he court erred in imposing restitution and reparation in excess of the statutory cap for the second victim’s past lost earnings because, under the plain meaning of the statute, that form of loss does not fall within the exception to the statutory cap pursuant to Penal Law § 60.27 (5) (b) … . In particular, contrary to the court’s determination, inasmuch as past lost earnings are wages, salary, or other income that the second victim could have, but did not, earn (see Black’s Law Dictionary [11th ed 2019], lost earnings), the excess amount ordered as restitution and reparation for that loss does not constitute reimbursement for “the return of the [second] victim’s property” or equivalent thereof (§ 60.27 [5] [b] …). People v Witherow, 2022 NY Slip Op 01691, Fourth Dept 3-11-22

Practice Point: Restitution for lost wages was improperly awarded because “lost wages” does not fit any of the statutory exceptions to the restitution-cap restriction.

 

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DEFENDANT NEVER PHYSICALLY POSSESSED THE NOTE UNDERLYING THE MORTGAGE AND WAS NEVER ASSIGNED THE NOTE; THEREFORE DEFENDANT DOES NOT HAVE STANDING TO FORECLOSE ON THE MORTGAGE; AN ATTORNEY’S FAILURE TO APPEAR AT A FULLY BRIEFED MOTION ARGUMENT IS NOT A DEFAULT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant does not own the note underlying the mortgage and therefore has no right to foreclose. The Fourth Department noted that an attorney’s failure to appear at a full briefed motion argument does not constitute a default:

… [D]efendant lacks noteholder standing because the promissory note upon which defendant relies is neither endorsed in blank nor specially endorsed to defendant … . … [E]ven had the note been endorsed in blank or specially endorsed to defendant, defendant’s admitted failure to physically possess the original note would independently preclude it from foreclosing as a noteholder … . …

Nor does defendant have assignee standing. The affidavits submitted on defendant’s behalf do not aver that the subject note was ever assigned to defendant … . …

… [A]n action to quiet title pursuant to RPAPL article 15 is a proper procedural vehicle for determining defendant’s standing to foreclose (see RPAPL 1501 [1], [5] … ). Hummel v Cilici, LLC, 2022 NY Slip Op 01690, Fourth Dept 3-11-22

Practice Point: An attorney’s failure to appear at a fully briefed motion argument is not a default.

Practice Point: A party who never physically possessed the note underlying the mortgage does not have standing to foreclose.

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, WITHOUT NOTICE TO THE DEFENDANT, ASSESSED 12 POINTS FOR FAILURE TO ACCEPT RESPONSIBILITY; DEFENDANT ACCEPTED RESPONSIBILITY BY PLEADING GUILTY (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have, sua sponte, without prior notice to the defendant, assessed 12 points for failure to accept responsibility in this SORA risk level proceeding. The Fourth Department noted defendant pled guilty to statutory rape. Although defendant stated he thought the 16-year-old victim was 18, the guilty plea was an adequate acceptance of responsibility:

… [I]t is well established that ” ‘[a] defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment’ ” … . As a result, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … . …

… [T]he court erred in assessing him 10 points under risk factor 12, for failure to accept responsibility, given that he pleaded guilty and admitted his guilt … . …

… [D]efendant was not afforded a meaningful opportunity to argue against the override [recommended by the board] or in favor of a downward departure … . People v Ritchie, 2022 NY Slip Op 01635, Fourth Dept 3-10-22

Practice Point: In a SORA risk assessment proceeding, the judge cannot, sua sponte, without notice to the defendant, assess points in a category not recommended by the board.

Practice Point: In a SORA risk assessment proceeding, where a defendant has pled guilty, an assessment of 12 points for failure to accept responsibility is not warranted.

 

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ALTHOUGH THE APPELLANT WAS IN JAPAN, THE 1ST DEPARTMENT REFUSED TO DISMISS THE APPEAL PURSUANT TO THE FUGITIVE DISENTITLEMENT DOCTRINE IN THIS FAMILY COURT CIVIL-CONTEMPT MATTER; APPELLANT HAD APPEARED VIRTUALLY IN COURT PROCEEDINGS AND STATED HE WOULD RETURN TO NEW YORK TO COMPLY WITH ANY COURT ORDER (FIRST DEPT).

The First Department refused to dismiss the appeal of this Family Court civil contempt matter pursuant to the fugitive disentitlement doctrine (which authorizes the dismissal of an appeal if the appellant has left the jurisdiction). Here father was in Japan:

Although the father is in Japan, we decline to dismiss the appeal pursuant to the fugitive disentitlement doctrine. There is no “nexus” connecting the father’s fugitive status and these proceedings … . The father has continued to appear virtually in court, communicate with his counsel, and consent to relief sought by the mother. He has complied with the terms of his probation and submitted an affidavit stating that he will return to New York to comply with any court order. Under these circumstances, we find that the father has not “flout[ed] the judicial process,” frustrated the operation of the courts, or prejudiced the mother’s rights by leaving the jurisdiction to warrant dismissal of the appeal … .Matter of Hilary C. v Michael K., 2022 NY Slip Op 01512, First Dept 3-10-22

Practice Point: If an appellant leaves the court’s jurisdiction (here father went to Japan), the appeal may be dismissed pursuant to the fugitive disentitlement doctrine. The doctrine was not applied in this Family Court civil contempt case because father participated in court proceedings virtually and stated he would return to New York to comply with any court order.

 

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THE 2020 AMENDMENTS TO CIVIL RIGHTS LAW 70, THE ANTI-SLAPP LAW, DO NOT APPLY RETROACTIVELY TO THE PLAINTIFF’S PENDING DEFAMATION ACTION AGAINST DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the 2020 amendments to the anti-strategic lawsuit against public participation (anti-SLAPP) law (Civil Rights Law section 70) should not be applied retroactively to cover plaintiff’s defamation claims against defendant. Therefore defendant’s motion for a ruling that the anti-SLAPP amendments applied retroactively should not have been granted:

… [T]here is insufficient evidence supporting the conclusion that the legislature intended its 2020 amendments to the anti-strategic lawsuit against public participation (anti-SLAPP) law (see Civil Rights Law § 70 et seq.) to apply retroactively to pending claims such as the defamation claims asserted by plaintiffs in this action.

The Court of Appeals has stated, in general terms, that “ameliorative or remedial legislation” should be given “retroactive effect in order to effectuate its beneficial purpose” … . * * * … “[C]lassifying a statute as remedial does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law” … . …

In light of …. the factual evidence that the amendments to New York’s anti-SLAPP law were intended to better advance the purposes of the legislation by correcting the narrow scope of the prior anti-SLAPP law, we find that the presumption of prospective application of the amendments has not been defeated. The legislature acted to broaden the scope of the law almost 30 years after the law was originally enacted, purportedly to advance an underlying remedial purpose that was not adequately addressed in the original legislative language. The legislature did not specify that the new legislation was to be applied retroactively. The fact that the amended statute is remedial, and that the legislature provided that the amendments shall take effect immediately, does not support the conclusion that the legislature intended retroactive application of the amendments. Gottwald v Sebert,  2022 NY Slip Op 01515, First Dept 3-10-22

Practice Point: The fact that a statute is deemed “remedial” in nature does not necessarily support a retroactive application of the statute. Here the 2020 amendments to the anti-SLAPP law, although “remedial,” were not applied retroactively to cover plaintiff’s pending defamation action against the defendant. The defendant’s motion for a ruling applying the amendments retroactively should not have been granted.

 

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THERE WAS NO DIRECT OR CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S-DECEDENT’S FALL FROM A LADDER; ONLY A DEFECTIVE OR UNSAFE LADDER GIVES RISE TO LABOR LAW 240(1) LIABILITY; THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION; THE ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-decedent’s Labor Law 240(1) and 241(6) causes of action should have been dismissed. Plaintiff’s decedent fell from a ladder, but there were no witnesses and no evidence of the cause of the fall. The trier of fact would have been forced to speculate about whether the ladder was defective in some way:

[Defendants] Casur and 124 Ridge established their prima facie entitlement to judgment as a matter of law by demonstrating that no one was in a position to establish the cause of the accident, as there was no direct or circumstantial evidence as to how the accident happened … . In opposition, plaintiff failed to raise a triable issue of fact. Since the accident may well have been caused by a misstep or loss of balance, rather than by a defective or improperly secured ladder, any determination by the trier of fact as to the cause of the accident would be based upon speculation … . The Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76, 80-81 [1948])is not applicable to this case, since Casur and 124 Ridge’s knowledge as to the cause of the accident is no greater than plaintiff’s … Public Adm’r of Queens County v 124 Ridge LLC, 2022 NY Slip Op 01522, First Dept 3-10-22

Practice Point: Falling from a ladder does not automatically trigger Labor Law 240(1) liability. There must be proof the ladder was defective or failed to protect the plaintiff in some way. Here there was no proof of the cause of plaintiff’s decedent’s fall so the action should have been dismissed.

 

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