You are here: / THE JUDGE SHOULD NOT HAVE ACCEPTED A PARTIAL VERDICT WITHOUT INTERVIEWING...

Search Results

/ ,

THE JUDGE SHOULD NOT HAVE ACCEPTED A PARTIAL VERDICT WITHOUT INTERVIEWING THE JUROR WHO HAD INFORMED THE COURT SHE COULD NOT CONTINUE DELIBERATING BECAUSE SHE WAS SUFFERING ANXIETY ATTACKS; BECAUSE THE JUROR WAS NOT QUESTIONED, IT IS IMPOSSIBLE TO KNOW WHETHER THE PARTIAL VERDICT WAS REACHED BEFORE THE JUROR BECAME UNABLE TO CONTINUE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have interviewed a juror who said she was suffering anxiety attacks and could not continue deliberations. The judge did not question the juror and accepted a partial verdict, without knowing whether the partial verdict was reached before the juror became unable to continue:

“The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case. In addition, the trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . “Although the Court of Appeals acknowledged that an ‘in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror,’ here, defense counsel wanted the juror to be questioned” … .

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (People v Buford, 69 NY2d at 299) of juror number 11 before accepting the partial verdict … . As a result of the court’s failure to make any inquiry of the juror, it is unknown whether the juror became unable to serve before, or after, the jury had reportedly reached a verdict on one of the counts … . People v Moody, 2021 NY Slip Op 07559, Second Dept 12-29-21

 

/ ,

THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY SERVED IS APPEALABLE PURSUANT TO CPLR 5501 (C); THE ORDER BRINGS UP FOR APPEAL WHETHER THE TRAVERSE HEARING WAS NECESSARY; THE MAJORITY C0NCLUDED THE HEARING WAS NOT NECESSARY; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive concurrence and an extensive dissent, determined: (1) the order issued after a traverse hearing finding that defendant was not properly served in this foreclosure action was an appealable order pursuant to CPLR 5501 (c); (2) the order brings up for review the finding that a traverse hearing was necessary; and )3), defendants’ affidavit denying proper services was conclusory and, therefore, a traverse hearing was not required. The central issue in the decision is whether the order directing the traverse hearing had been brought for review by the order dismissing the complaint after the hearing:

… [O]ur jurisdiction is premised upon CPLR 5501(c), which directs that this Court “shall review questions of law and questions of fact on an appeal from a[n] . . . order of a court of original instance,” as well as the consistent line of cases from this Court holding that an appeal from an order granting a motion to dismiss based upon lack of personal jurisdiction—issued after a hearing—also brings up for review the issue of whether a hearing was necessary to determine the motion … . Since an order directing a hearing to aid in the determination of a motion holds the determination of the motion in abeyance, the subsequent order made after the hearing is “the proper order to appeal from” … . OneWest Bank FSB v Perla, 2021 NY Slip Op 07550, Second Dept 12-29-21

 

/ ,

PLAINTIFF’S MOTION TO COMPEL THE DEFENDANT ESTATE TO HIRE AN ATTORNEY OR BE DEEMED IN DEFAULT SHOULD HAVE BEEN GRANTED; WHERE THERE ARE CLAIMS AGAINST AN ESTATE, THE ESTATE CANNOT REPRESENT ITSELF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s motion to require the defendant executor of the estate to hire an attorney for the estate or be deemed in default should have been granted. An estate cannot represent itself:

… [T]he motion court should have granted plaintiffs’ motion seeking to require Madden to retain licensed counsel to represent the estate. Although CPLR 321(a) does not address whether an estate is permitted to represent itself, courts have concluded that, in matters involving claims brought against an estate, estate representatives cannot act pro se because their own individual liberty or property interests are not involved. Rather, the interests belong to the estate beneficiaries … . Alaina Simone Inc. v Madden, 2021 NY Slip Op 07497, First Dept 12-28-21

 

/ , , ,

DEFENDANT EMPLOYER’S LATE MOTION TO AMEND THE ANSWER IN THIS LABOR LAW 240 (1) ACTION TO ASSERT THAT PLAINTIFF’S EXCLUSIVE REMEDY WAS THE WORKER’S COMPENSATION BENEFITS ALREADY AWARDED SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant employer’s (H&M’s) motion to amend its answer to allege Workers’ Compensation was plaintiff’s sole remedy in this Labor Law 240(1) action should have been granted, despite the lateness of the motion:

H&M’s initial failure to submit the proposed amended pleading (CPLR 3025[b]) was a technical defect that the court should have overlooked (see CPLR 2001), particularly since H&M attached the proposed amendment to its reply … . Plaintiff’s arguments that he was prejudiced by the amendment proposed in H&M’s cross motion, filed about three years after this action was commenced and two years after the workers’ compensation ruling was affirmed, are unavailing … . It is not dispositive that leave to amend was sought a few months after the note of issue was filed … .

The valid and final decision of a panel of the Workers’ Compensation Board, affirming a decision by a Workers’ Compensation Law Judge that was based on a finding that H&M was plaintiff’s employer at the time of the accident, “bars [plaintiff] from relitigating the identical issue in this proceeding”  … . Chen v 111 Mott LLC, 2021 NY Slip Op 07501, First Dept 12-28-21

 

/ ,

PARTICIPATION IN A PRISON SEX OFFENDER TREATMENT PROGRAM WAS NOT ENOUGH TO AVOID A 10-POINT ASSESSMENT FOR FAILURE TO ACCEPT RESPONSIBILITY IN THIS SORA RISK-LEVEL PROCEEDING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined defendant’s participation in a prison sex offender treatment program did not preclude the assessment of 10 points for failing to accept responsibility for his misconduct. The additional 10 points raised defendant’s risk level from two to three:

Factor 12 of the Sex Offender Registration Act (SORA) Risk Assessment Guidelines allows for the assessment of 10 points for a sex offender if he “has not accepted responsibility for his sexual misconduct.” This appeal raises the issue of whether (and to what extent) a sex offender’s participation in a sex offender treatment program is evidence that he has accepted responsibility for his misconduct. We conclude that a sex offender’s participation in a sex offender treatment program is some evidence that the offender has accepted responsibility and that such evidence must be considered in conjunction with any other reliable evidence bearing on the subject (e.g., statements by the sex offender). In light of all of the evidence relevant to the subject of defendant’s acceptance of responsibility for his misconduct, including his participation in a sex offender treatment program and his statements minimizing or denying responsibility for his misconduct, the SORA court correctly concluded that the People established, by clear and convincing evidence, that defendant had not genuinely accepted responsibility for his misconduct, and, accordingly, properly assessed defendant 10 points for Factor 12. People v Solomon, 2021 NY Slip Op 07519, First Dept 12-28-21

 

/ , , ,

PLAINTIFF’S COMPLAINT AGAINST THE DEFAULTING DEFENDANT-ATTORNEY SUFFICIENTLY ALLEGED GENDER DISCRIMINATION AND INFLICTION OF EMOTIONAL DISTRESS BY DEFENDANT-ATTORNEY’S WITHHOLDING REQUESTED LEGAL SERVICES AND ENGAGING IN SEXUAL HARASSMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s complaint against the defaulting attorney-defendant should not have been dismissed. Plaintiff alleged defendant attorney discriminated against her by depriving her of the legal services she sought in connection with a sexual assault. Plaintiff alleged she was sexually harassed by defendant attorney. The matter was sent back to determine damages:

“[B]y defaulting, a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages” … . “Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action,” but the standard of proof is “minimal,” “not stringent” … .

… [P]laintiff averred that defendant … used his position of authority and confidence as an attorney to gain her trust, and then discriminated against her by withholding the legal services she sought in connection with litigation related to a sexual assault of plaintiff and using the pretext of offering such services to harass and subject her to unwelcome sexual conduct and advances. …

Plaintiff established claims under New York State Executive Law § 269(2)(a) (State HRL) that defendant … discriminated against plaintiff based on her gender … . [P]laintiff also made a prima facie showing that defendant[‘s] … discriminatory behavior violated the City HRL … . [P]laintiff established her claim for intentional infliction of emotional distress by demonstrating that defendant … engaged in extreme and outrageous conduct through his deliberate and malicious campaign of harassment, while disregarding a substantial probability that doing so would cause severe emotional distress to her, and that his conduct did in fact did cause her severe emotional distress … . Petty v Law Off. of Robert P. Santoriella, P.C., 2021 NY Slip Op 07527, First Dept 12-28-21

 

/

PLAINTIFF, A NOVICE SKIER, WAS INJURED DURING A LESSON; THERE WAS A QUESTION OF FACT WHETHER THE INSTRUCTOR UNREASONABLY INCREASED THE RISK BY HAVING PLAINTIFF SKI DOWN AN INTERMEDIATE HILL WITHOUT ADEQUATE TRAINING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff-skier’s (Bodden’s) negligence complaint should not have been dismissed on the ground she assumed the risks inherent in skiing. Plaintiff was a novice and was taking a lesson at the time she was injured. The instructor had plaintiff go down the “bunny hill” a few times and then took plaintiff to an intermediate hill. Plaintiff lost control, was unable to stop and struck a fence:

A factual dispute remains as to whether Bodden [plaintiff] expressed reservations to the instructor about whether she was ready to progress to Benson’s Glade and whether the instructor encouraged her in a manner that was overzealous under the circumstances. It is also unclear whether the instructor taught Bodden, before going on the trail, how to safely fall if she could not remain in the pizza wedge formation, and whether she yelled out to Bodden to do so after she lost control. Although Bodden conceded that she knew the risks associated with skiing and had successfully completed several runs down the bunny hill, she had limited opportunity to practice the technique that she had been taught for slowing down and stopping under real life circumstances, as the bunny hill was primarily flat and, according to Bodden, “skiers stop[ped] on their own there.” Not to be overlooked is the fact that Bodden was a novice skier and was taken on a trail designated as intermediate on the trail map. We recognize that defendants proffered an affidavit from the instructor explaining that, although Benson’s Glade is formally designated an intermediate trail, it is more akin to a beginner’s trail. Notably, however, the instructor revealed that she was aware of an area of Benson’s Glade that had a “sharper turn” and had “witnessed multiple people coming straight down and ending up in the trees” near that area. Such testimony creates a question of fact as to whether Benson’s Glade was appropriate for a novice skier such as Bodden. Viewing the evidence in the light most favorable to plaintiffs, we conclude that triable issues of fact exist as to whether the instructor unreasonably increased the risk of injury and whether Bodden voluntarily assumed such risk … . Bodden v Holiday Mtn. Fun Park Inc., 2021 NY Slip Op 07330, Third Dept 12-23-21

 

/ , ,

FAMILY COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, AMEND A DISMISSAL ORDER FROM “WITHOUT PREJUDICE” TO “WITH PREJUDICE” (THIRD DEPT).

The Third Department noted that Family Court did not have the authority to, sua sponte, amend a dismissal order from “without prejudice” to “with prejudice:”

… Family Court erred in sua sponte amending its October 13, 2020 dismissal order from “without prejudice” to “with prejudice.” Family Court may, in its discretion, correct or amend an order, so as to cure mistakes, defects or irregularities in the order that do not affect a substantial right of a party (see CPLR 5019 [a] …) or to resolve any ambiguity in the order to make it comport with what the court’s holding clearly intended … . However, in the absence of a motion pursuant to CPLR 2221 (d) or 5015 (a), Family Court lacks the authority to issue an amended or corrected order that alters its dismissal of a petition from “without prejudice” to “with prejudice,” as such alteration is one of substance … . Matter of Brian W. v Mary X., 2021 NY Slip Op 07332, Third Dept 12-23-21

 

/

DEFENDANT HOMEOWNER DID NOT DIRECT OR EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK; THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO THE STATUTORY HOMEOWNER’S EXEMPTION; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION, TO WHICH THE HOMEOWNER’S EXEMPTION DOES NOT APPLY, SHOULD ALSO HAVE BEEN DISMISSED BECAUSE THE DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK (THIRD DEPT). ​

The Third Department, reversing Supreme Court determined the Labor Law 240(1), 241(6), 200 and common law negligence causes of action against the homeowner should have been dismissed. Plaintiff alleged he fell 14 feet attempting to install floor joists across the foundation. The Labor Law 240(1) and 241(6) causes of action should have been dismissed pursuant to the statutory homeowner’s exemption, which was deemed applicable because defendant did not direct the plaintiff’s installation of the joists. The Labor Law 200 and common law negligence causes of action should have been dismissed for essentially the same reason (there is no statutory homeowner’s exemption for those causes of action):

… [P]laintiff averred that he and defendant had discussions about work orders, logistics, materials and the architectural drawings, that defendant checked in with him on a daily basis, that defendant told him where to park during work hours and to lock a gate at the conclusion of the workday, that defendant changed the stairs and windows to be used for the house and changed the placement of a fireplace and that defendant moved rocks and applied tape to plywood at the construction site. Even when viewed in the light most favorable to plaintiff, however, this evidence does not indicate that defendant directed or controlled the manner of plaintiff’s work … . Capuzzi v Fuller, 2021 NY Slip Op 07335, Third Dept 12-23-21

 

/

CLAIMANT FIREFIGHTER DEMONSTRATED HIS PTSD IS RELATED TO THE HORRIFIC INJURIES AND DEATHS HE WITNESSED DOING HIS JOB; WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant firefighter demonstrated his PTSD is related to the horrific injuries and deaths he witnessed doing his job:

… [W]here a firefighter “files a claim for mental injury premised upon extraordinary work-related stress incurred in a work-related emergency, the [B]oard may not disallow the claim, upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment” (Workers’ Compensation Law § 10 [3] [b] … ). …

The record includes a … letter from claimant’s treating psychologist — Raymond Angelini — who opined that claimant was suffering from PTSD “as a result of responding to countless horrific, work-related emergency situations over the course of his career as a firefighter . . ., including but not limited to exposure to death, dismemberment, disfigurement[] and CPR regurgitation.” …

… [W]e conclude that claimant demonstrated, through competent medical evidence, a reasonable probability that his PTSD was causally related to his employment … . Matter of Reith v City of Albany, 2021 NY Slip Op 07339, Third Dept 12-23-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy